I 


i-ilj 


Publications  of  the 

Carnegie  Endowment  for  International  Peace 

Division  of  International  Law 
Washington 


THE  PROCEEDINGS 

OF  THE 

HAGUE  PEACE  CONFERENCES 

Translation  of  the  Official  Texts 

PREPARED   IN   THE 

Division  of  International  Law  of  the  Carnegie 
Endowment  for  International  Peace 

UNDER  THE    SUPERVISION    OF 

JAMES   BROWN   SCOTT 

DIRECTOR 


The  Conference  of  1899 


NEW  YORK 

OXFORD  UNIVERSITY  PRESS 

AMERICAN  BRANCH  :  35  WEST  32ND  STREET 
LONDON,  TORONTO,  MELBOURNE,  AND  BOMBAY 

1920 


C\ 


O^^'.^'^-^JL 


--^N-«A'-^'»w-^^  J       i-r  V       J- — 1/ 


^    V^'^-  ' 


COPYRIGHT  1920 

BY  THE 

CARNEGIE  ENDOWMENT  FOR  INTERNATIONAL  PEACE 
2  Jackson  Place,  Washington,  D.  C 


PREFATORY  NOTE 

The  present  translation  of  the  proceedings  of  the  Hague  Peace  Conferences, 
the  first  complete  version  to  appear  in  the  English  language,  has  been  prepared 
in  the  Division  of  International  Law  of  the  Carnegie  Endowment  for  Inter- 
national Peace.  It  was  undertaken  at  the  special  instance  and  request  of  the 
Honorable  Robert  Lansing,  Secretary  of  State  of  the  United  States,  who,  on 
behalf  of  the  Department  of  State,  accepted  the  offer  of  the  Trustees  of  the 
Endowment  of  the  use  of  its  offices  and  the  services  of  its  personnel  at  the 
outbreak  of  the  war  between  the  United  States  and  Germany.  The  work  of 
the  translation,  although  formidable,  was  fortunately  completed  early  enough 
to  print  a  sufficient  number  of  preliminary  copies  for  the  use  of  the  American 
Commission  to  Negotiate  Peace. 

The  proceedings  of  the  Conference  of  1899,  as  originally  published  by 
the  Netherland  Government,  are  contained  in  a  single  large  volume,  consisting 
of  four  parts  devoted  respectively  to  the  Conference  and  the  First,  Second 
and  Third  Commissions,  and  bearing  the  title-page:  Conference  internationale 
de  la  paix.  La  Haye,  18  mai-29  jnillet  1899.  Ministcre  des  affaires  etrangcres. 
La  Haye,  Imprimerk  nationale,  1899.  In  1907,  the  year  of  the  meeting  of  the 
Second  Conference,  a  new  edition  of  the  proceedings  of  the  First  Conference 
was  printed  bearing  the  title-page :  Conference  internationale  de  la  paix.  La 
Haye,  18  mai-29  jnillet  1899.  Ministere  des  affaires  etrangcres.  Nouvelle 
edition.  La  Haye,  Martinus  Nijhoff,  1907.  Inasmuch  as  this  latter  edition  is 
apparently  the  only  one  now  generally  accessible  it  has  been  used  for  the  present 
translation.  In  the  French  edition  each  of  the  four  parts  is  preceded  by  its 
table  of  contents,  but  for  the  convenience  of  American  and  English  readers,  the 
tables  of  contents  of  the  several  parts  of  the  translation  have  been  grouped 
at  the  beginning  of  the  volume. 

The  proceedings  of  the  Conference  of  1907,  as  published  by  the  Nether- 
land  Government,  are  contained  in  three  large  volumes  bearing  the  title-page: 
Deuxieme  conference  internationale  de  la  paix.  La  Haye,  15  juin-18  octobre 
1907.  Actes  et  documents.  Ministcre  des  affaires  etrangcres.  La  Haye,  Im- 
primerie  nationale,  1907.  Although  these  volumes,  in  the  translation,  form  the 
second,  third  and  fourth  volumes  of  the  series,  no  change  has  been  made  in 
their  numbers.  Volume  I  is  devoted  to  the  plenary  meetings  of  the  Conference, 
Volume  II  to  the  meetings  of  the  First  Commission,  and  Volume  III  to  the 
meetings  of  the  Second,  Third,  and  Fourth  Commissions. 

The  numbers  in  brackets  in  both  the  text  and  footnotes  of  the  translation 
indicate  the  folios  of  the  French  original.  Editor's  footnotes  are  likewise  in 
brackets.  The  indexes  to  the  original  volumes  have  been  greatly  enlarged  for 
the  convenience  of  the  general  reader  and  students  who  may  have  occasion  to 
consult  them. 

The  Peace  Conferences  held  at  The  Hague  were  the  first  truly  international 
assemblies  meeting  in  time  of  peace  for  the  purpose  of  preserving  peace,  not 
of  concluding  a  war  then  in  progress.     They  marked  an  epoch  in  the  history 


416072 


vi  PREFATORY  NOTE 

of  international  relations.  They  showed  on  a  large  scale  that  international 
cooperation  as  possible,  and  they  created  institutions — imperfect  it  may  be, 
as  is  the  work  of  human  hands, — which,  when  improved  in  the  light  of  experi- 
ence, will  both  by  themselves  and  by  the  force  of  their  example  promote  the 
administration  of  justice  and  the  betterment  of  mankind. 

James  Brown  Scott, 
Director  of  the  Division  of  International  Law. 
Paris,  France, 
February  28,  1919. 


The  International  Peace  Conference 

The  Hague,  May  18— July  29,  1899 


MINISTRY  FOR  FOREIGN  AFFAIRS 


NEW  EDITION 


THE  HAGUE 

MARTINUS  NIJHOFF 
1907 


CONTENTS 

PART  I 

PACE 

List  of  Delegates 1 


PLENARY  CONFERENCE 
His  Excellency  Mr.  Staal  presiding 

First  Meeting    (May  18,   1899) 9 

Opening  address  by  his  Excellency  Mr.  de  Beaufort,  Minister  for  Foreign  Affairs     .  13 

Address  of  his  Excellency  Mr.  Staal,  first  delegate  of  Russia,  president  of  the  Conference  15 

Constitution  of  the  bureau  and  the  secretariat 16 

Second  Meeting  (May  20,  1899) 17 

Reading  of  a  letter  from  Her  Majesty  the  Queen  of  the  Netherlands       ....  17 

Reading  of  a  telegram  from  His  Majesty  the  Emperor  of  Russia 17 

Address   of   the   President    .       .       .       .  • 17 

Third  Meeting   (May  23,  1899) 21 

Designation  of  the  commissions  and  their  bureaus 21 

Provisions  relative  to  the  minutes  of  the  meetings 22 

Annex.    Table  of  the  division  of  delegates  into  commissions 23 

Fourth  Meeting  (June  20,  1899) 27 

Filing  of  the  report  of  the  Second  Commission  (adaptation  to  maritime  warfare  of  the 

principles  of  the  Geneva  Convention) 27 

Adoption  of  the  10  articles  of  the  draft  Convention 30 

Declaration  of  Mr.  Motono,  delegate  of  Japan 30 

Declaration  of  Mr.  Delyanni,  first  delegate  of  Greece 31 

Declaration  of  the  Ottoman  delegation 31 

Designation  of  the  Drafting  Committee  of  the  Final  Act  of  the  Conference  ...  31 

Annex.    Report  of  Mr.  L.  Renault,  in  the  name  of  the  Second  Commission  ...  31 

Fifth  Meeting   (July  5,  1899) 45 

Filing  and  adoption  of  the  report  of  the  Second  Commission   (regulation  of  the  laws 

and   customs   of   war) 45 

Adoption  of  the  articles  of  the  draft  Convention 45 

ix 


X  CONTENTS 

PAGE 

Adoption  of  a  vceu  expressed  by  the  first  delegate  of  Luxemburg,  relative  to  the  ques- 
tion of  the  rights  and  duties  of  neutrals 46 

Adoption  of  a  vacu  relative  to  the  bombardment  of  undefended  ports 46 

Declaration  of  abstention  of  Sir  J.  Pauncefote,  first  delegate  of  England  ....  46 

Adoption  of  a  vccu  relative  to  the  revision  of  the  Geneva  Convention 46 

Discussion  of  a  vocu  presented  by  the  delegation  of  the  United  States  relative  to  the 

inviolability  of  private  property  in  time  of  naval  war 46 

Address  of  Mr.  White,  first  delegate  of  the  United  States .47 

Declaration  of  Count  Nigra,  first  delegate  of  Italy 49 

Adoption   of  the  vccu  relative  to   the   reference  to   a  subsequent   Conference   of   the 

American  proposal 49 

Nomination  of  new  members  of  the  Drafting  Committee  of  the  Final  Act     ...  50 

Annex  I.    Report  of  Mr.  Rolin,  in  the  name  of  the  Second  Commission  ....  50 

Annex  II.     Draft  Convention  in  60  articles 69 

Sixth  Meeting  (July  21,  1899) 79 

Thanks  of  His  Majesty  the  Emperor  of  Russia  for  the  condolence  transmitted  by  the 
Conference  on  the  occasion   of  the   death  of   His   Imperial   Highness   the   Grand 

Duke   Heir   Apparent 79 

Examination  of  the  report  of  the  First  Commission ,79 

Proposal  of  Captain  Crozier,  delegate  of  the  United  States 79 

Discussion  of  this  proposal  (Messrs.  Gilinsky,  van  Karnebeek,  den  Beer  Poortugael)    .  8^ 

Address  of  Mr.  White 85 

Rejection  of  the  proposal  of  Captain  Crozier 87 

Adoption  of  the  report  of  the  First  Commission 87 

Withdrawal  by  the  delegation  of  the  United  States  of  its  additional  proposals  to  the 

draft  Convention  prepared  by  the  Second  Commission   (Red  Cross)    ....  88 

Annex.    Report  of  Mr.  van  Karnebeek,  in  the  name  of  the  First  Commission       .       .  88 

Seventh  Meeting   (July  25,  1899) 91 

Filing  and  adoption   of  the   report  of  the   Third   Cominission    (pacific   settlement  of 

international   disputes) 91 

Adoption  of  the  draft  Convention  in  57  articles 91 

Declaration  of  the  Count  de  Macedo,  first  delegate  of  Portugal 99 

Declaration  of  the  delegation  of  the  United  States .  99 

Declaration  of  the  Ottoman  delegation 100 

Proposal  of  Sir  J.  Pauncefote  concerning  Article  53  (shore  ends  of  cables)    .       .       .  100 

Declaration  of  Mr.  Bille,  first  delegate  of  Denmark 101 

Adoption  of  the  modification  of  Article  53 101 

Oral  report  of  Mr.  Renault  in  the  name  of  the  Drafting  Committee  of  the  Final  Act  .  101 

Adoption  of  draft  of  the  Final  Act 105 

Declaration  of  Sir  J.  Pauncefote 105 

Declaration  of  Mr.  Odier,  delegate  of  Switzerland 105 

Address  of  his  Excellency  Count  Nigra 105 

Reply  of  Mr.  van  Karnebeek 106 

Annex.     Report   of    Chevalier   Descamps,   in    the   name   of   the   Third    Commission. 

with   annexes 106 


CONTENTS  xi 

PAGE 

Eighth   Meeting    (July   27,    1899) 207 

Oral  report  of  Mr.  Renault  in  the  name  of  the  Drafting  Committee  of  the  Final  Act  .  207 

Adoption    of    the    drafts    of   preamble    and   final   provisions    of    the    Conventions    and 

Declarations 209 

Declaration  of  Count  de  Grelle  Rogier,  delegate  of  Belgium  ..._....  212 

Declaration  of  Mr.  Eyschen,  first  delegate  of  Luxemburg 212 

Declaration  of  Mr.  Delyanni 213 

Declaration  of  the  delegation  of  China   . 213 

Declaration  of  Sir  J.  Pauncefote 213 

Declaration  of  his  Excellency  Count  Nigra 213 

Declaration  of  Mr.  Leon  Bourgeois,  first  delegate  of  France 213 

Declaration  of  Count  de  Macedo 214 

Ninth  Meeting  (July  28,  1899) 215 

Oral  report  of  Mr.  Renault  in  the  name  of  the  Drafting  Committee  of  the  Final  Act   .  215 

Adoption  of  the  draft  of  the  preamble  and  final  provisions  of  the  Convention  for  the 

pacific  settlement  of   international   disputes 217 

Report  of  Mr.  van  Karnebeek  in  the  name  of  the  Correspondence  Commission       .       .  218 

Adoption  of  the  report 219 

Annex.    Nomenclature  of  sovereigns  and  rulers  of  States  in  the  order  adopted  by  the 

Conference  to  serve  as  preamble  to  the  acts 219 

Tenth  Meeting    (July  29,   1899) 220 

Closing  meeting 220 

Table  of  signatures  affixed  to  the  Final  Act,  Conventions  and  Declarations   .       .       .  220 

Reading  of  a  letter  from  Her  Majesty  the  Queen  of  the  Netherlands  to  His  Holi- 
ness the   Pope 222 

Reply   of    His    Holiness 222 

Address  of  the  President 223 

Address  of  his  Excellency  Count  Mtinster,  first  delegate  of  Germany 225 

Reply   of   the    President 226 

Reply  of  Jonkheer  van  Karnebeek 226 

Address  of  Baron  d'Estournelles,  delegate  of  France 226 

Address  of  his  Excellency  Mr.  de  Beaufort,  Minister  for  Foreign  Affairs  ....  226 

Close  of  the  work  of  the  Conference 227 

Annexes 

Final  Act  of   the   Conference 228  .- 

Convention  for  the  pacific  settlement  of  international  disputes 235 

Convention   for  the  adaptation  to  maritime  warfare  of  the  principles  of  the   Geneva 

Convention 247 

Convention  respecting  the  laws  and  customs  of  war  on  land 251  ^ 

Declaration  relative  to  the  prohibition  of  balls  which  expand  in  the  human  body  .       .  262 

Declaration  relative  to  the  prohibition  of  the  throwing  of  projectiles  from  balloons     .  264 

Declaration  relative  to  the  prohibition  of  the  employment  of  asphyxiating  projectiles  .  266 

Table  of  signatures  affixed  up  to  December  31,  1899,  to  the  Conventions  and  Declarations  268 


xii  CONTENTS 


PART  II.— FIRST  COMMISSION 

A.   PLENARY  MEETINGS 
His  Excellency  Mr.  Beernaert  presiding 

PAGE 

First  Meeting  (May  23,  1899)    . 271 

Distribution   of   the  work  of  the   Commission 271 

Division   into   two   subcommissions 271 

Second  Meeting    (May  26,    1899) 272 

Address   of  the   President 272 

Third  Meeting   (June  22,  1899) 276 

Discussion  and  vote  on  the  conclusions  of  the  report  presented  by  General  den  Beer 

Poortugael  in  the  name  of  the  first  subcommission 276 

Declaration    of    General    Sir    John    Ardagh    on    the    subject    of    the    bullets    called 

"  dumdum  " 276 

Discussion  and  vote  on  the  first  conclusions  of  the  report  presented  by  Count  Soltyk, 

Captain  of  Corvette,  in  the  name  of  the  second  subcommission 282 

Annex   I.     Report  of   General   den   Beer   Poortugael 284 

Annex  II.     Report  of  Captain  Soltyk 291 

Fourth  Meeting    (June  23,   1899) 298 

Discussion  and  votes  on  the  last  conclusions  of  the  report  presented  by  Count  Soltyk, 

Captain  of  Corvette,  in  the  name  of  the  second  subcommission 298 

Examination  of  the  first  proposition  in  the  circular  of  his  Excellency  Count  Mouravieff  299 

Address  of   his   Excellency    Mr.    Staal 300 

Address  of   General   den    Beer   Poortugael 301 

Address  of    Colonel    Gilinsky 302 

Address  of  Mirza  Riza  Khan,  Arfa-ud-Dovleh,  first  delegate  of  Persia  ....  305 

Proposals  formulated  by  Colonel  Gilinsky  and  Captain  Scheine 305,  306 

Fifth  Meeting  (June  26,  1899) 307 

General  discussion  of  the  first  proposition  of  the  circular  of  his   Excellency   Count 

Mouravieff          308 

Address  of  Colonel  Gross  von  Schwarzhoff 308 

Reply  of  Jonkheer  van  Karnebeek 311 

Vote  on  the  reference  of  the  Russian  proposals  to  a  technical   examination  in  the 

subcommissions 313 


CONTENTS  xiii 

PAGE 

Sixth  Meeting   (June  30,  1899)       . 314 

Declaration  of  Mr.  Miyatovitch,  first  delegate  of  Serbia 314 

Rej)ort  presented  in  the  name  of  the  first  subcommission  on  the  proposals  of  Colonel 

Gilinsky 315 

Address  of  Baron  Bildt/first  delegate  of  the  United  Kingdoms  of  Sweden  and  Norway  316 

Address  and  proposal  of  Mr.  Leon  Bourgeois,  first  delegate  of  France   .       .       .       .317 

Declaration  of  Mr.  Delyanni,  first  delegate  of  Greece 319 

Report  presented  in  the  name  of  the  second  subcommission  on  the  subject  of  the  pro- 
posals of   Captain   Scheine 320 

Address  of  Mr.  Bille,  first  delegate  of  Denmark 321 

Seventh  Meeting   (July  17,  1899) 323 

Address  of  condolence  by  Jonkheer  van  Karnebeek,  president 323 

Reply   of   his   Excellency   Mr.    Staal ^  .       .      .  323 

Discussion  and  vote  on  the  draft  of  the  report  presented  to  the  Conference  by  Jonkheer 

van  Karnebeek  in  the  name  of  the  First  Commission 323 

Declaration  made  by  Captain  Mahan  in  the  name  of  the  Government  of  the  United 

States  of  America 327 

Eighth  Meeting  (July  20,  1899) 328 

Discussion  and  vote  on  the  draft  of  the  report  of  the  First  Commission  {see  Plenary 

meeting    of   July   2i,   Annex) 328 


B.   FIRST  SUBCOMMISSION 
His  Excellency  Mr.  Beernaert  presiding 

First  Meeting  (May  26,  1899) 331 

Russian  proposal  on  the  question  of  guns 331 

Declarations  of  the  different  delegations  upon  the  proposal  of  Colonel  Gilinsky  .       .  333 

Second  Meeting   (May  29,  1899) 337 

Proposal  of  Colonel  Barantzew 337 

Proposal  of   General   den   Beer   Poortugael 337 

Discussion  of  these  proposals 337 

Question  of  cannon.  Vote  on  the  Russian  proposal 339 

Discussion  and  vote  on  the  second  part  of  the  third  proposition  of  the  circular  of 

his    Excellency    Count    Mouravieff .341 

Declaration  of   the  delegation  of   the   Netherlands 341 


Third  Meeting   (May  31,   1899) 343 

Discussion  upon  the  formula  proposed  by  the  delegates  of  France,  of  Roumania  and 

of    Russia,    relative   to   bullets 343 

Vote  on  the  proposal  of  Colonel  Count  Barantzew .      .  345 


xiv  CONTENTS 

PAGE 

Fourth  Meeting  (June  7,  1899) .  349 

Proposal  and  address  of  General  den  Beer  Poortugael  on  the  question  of  guns  .      .  349 

Proposal  of   Captain   Crozier  on  the   subject  of  the  prohibition  of   the   discharge   of 

projectiles    from    balloons 353 

Fifth  Meeting  (June  22,  1899) 356 

Declaration  of  the  Bulgarian  delegation  relative  to  guns 356 

Discussion  on  the  draft  of  the  report  presented  by  General  den  Beer  Poortugael       .  356 

Sixth  Meeting    (June  26,   1899) 358 

Composition  of  the  committee  charged  with  the  examination  of  the  Gilinsky  proposals 

(proposition  1  of  the  Mouravieff  circular) 358 


C   SECOND  SUBCOMMISSION 

Jonkheer  van  Karnebeek  presiding 

First  Meeting  (May  26,  1899) 359 

Discussion  upon  the  question  of  cannon  and  explosives 359 

Second   Meeting    (May  29,   1899) 362 

Continuation   of   the  preceding  discussions 362 

Statement   of   Captain   Scheine ^       .       .       .  362 

Third   Meeting    (May   31,    1899) 365 

Question   of    diving   torpedo   boats   or   submarines 367 

Question  of  vessels  with  rams 368 

Fourth  Meeting    (June  5,   1899) 370 

New  proposal  of  Captain  Scheine  relative  to  the  caliber  of  cannon 371 

Fifth    Meetine    (June   16,    1899) 375 

Report  presented  by  Captain  Count  Soltyk 375 

Sixth   Meeting    (June  26,   1899) 377 

Examination  of  the  proposals  of   Captain   Scheine    (proposition   1  of   the   Mouravieff 

circular) Z77 

Seventh  Meeting   (June  30,  1899) 380 

Report  of  the  special  committee  instituted  in  the  meeting  of  June  26       ...       .  380 


CONTENTS  XV 


PART  III.— SECOND  COMMISSION 

A.    PLENARY  MEETINGS 
Mr.  Martens  presiding 

PAGE 

First  Meeting  (May  23,  1899)   .       . 383 

Distribution  of  the  work 383 

Second  Meeting    (May  25,   1899) 385 

Exchange  of  opinion  upon  the  respective  competence  of  the  two  subcommissions  .       .  385 

Proposals  of   Colonel  Gilinsky 385 

Third   Meeting    (June  20,    1899) 387 

Examination   of   the   report   of   the   first   subcommission    (Red    Cross)    presented   by 

Mr.   Renault 387 

Vote  on  the  ten  articles 387 

Declaration  of  Mirza  Riza  Khan  and  of  Mr.  Rolin   .       .       .       .       ,       .       .       .    390,  391 

Proposals   of   Captain   Mahan 391 

Vcru  relative  to  the  revision  of  the  Geneva  Convention  (Mr.  Asser,  Mr.  Beldiman)      .  393 

Vote  on  the  voeu  with  the  amendment  of  Mr.  Beldiman 394 

Annex.     Report  of  Mr.  Renault 395 

Fourth  Meeting  (July  5,  1899) 408 

Proposal  of  Mr.  Beldiman 408 

Examination  of  the  report  of  the  second  subcommission   (laws  and  customs  of  war) 

presented  by  Mr.  Rolin.    Discussion  and  adoption  of  the  articles 409 

Motion  of  Count  Nigra  relative  to  the  bombardment  by  naval  forces  of  undefended 

ports,  towns   and   villages 409 

Observations  of  Sir  Julian  Pauncefote 411 

Letter  of  the  delegation  of  the  United  States  relative  to  the  inviolability  of  private 
property  at  sea  in  time  of  war.  Discussion  of  a  vceu  expressed  for  the  reference 
of  this  question  to  a  subsequent  conference.     Vote.     Abstention  of  France,  Great 

Britain   and   Russia 411 

Vote  on  the  vccu  expressed  by  Mr.  Eyschen,  concerning  the  rights  and  duties  of  neutrals  413 
Suggestions  of  the  President,  concerning  the  preamble  and  the  final  provisions  of  the 

convention  to  be  concluded 414 

Annex.     Report  of  Mr.  Rolin 415 


B.   FIRST  SUBCOMMISSION 

Mr.  Asser  presiding 

First  Meeting  (May  25,  1899) 444 

Program  of  the  work  of  the  subcommission 444 

Second   Meeting    (May   30,   1899) 449 

Subdivision  of  the  subjects ;   four  groups.     Discussion  of  the  first  group  concerning 

ships 449 

Question  of  the  flag 453 


xvi  CONTENTS 

PAGE 

Third  Meeting  (June  1,  1899) 455 

Second  group  (religious  and  sanitary  personnel,  etc.) 455 

Third  group   (wounded,  sick  and  shipwrecked) 455 

Fourth  group   (general  provisions) 457 

Fourth  Meeting    (June   13,   1899) 458 

Examination  of  the  report  of  Mr.  Renault  and  discussion  of  the  articles  proposed  by 

the  drafting  committee.    Discussion  of  Articles  1  to  9 458 

Declaration  of  Noury  Bey  and  Mr.  Rolin 461 

Declaration  of  Mr.  Motono 462 

Fifth  Meeting    (June   IS,   1899) 467 

Discussion  of  Article  10 467 

Declaration  of  Mr.  Motono 468 

Adoption  of  the  text  of  Article  10 471 

Preamble  and  final  provisions 471 


C.   SECOND  SUBCOMMISSION 

Mr.  Martens  presiding 

First  Meeting  (May  25,  1899) 474 

Organization  of  the  work 474 

Second  Meeting  (May  27,  1899)     . 475 

Declaration  of   Mr.  Martens 475 

Discussion  of  the  chapter  "  Prisoners  of  war " 475 

Third  Meeting  (May  30,  1899) 480 

Wording  of  Articles  25  and  26  proposed  by  Mr.  Beernaert 480 

Additional  articles  proposed  by  Mr.  Beernaert 481 

Discussion  of  the  chapters  "Capitulations"  "Armistices" 483 

Discussion  of  the  chapter  "  Parlementaires" 485 

Fourth  Meeting    (June  1,   1899) 487 

Discussion  of  the  chapter  "Military  authority  over  the  territory  of  the  hostile  State"  .  487 

Discussion  of  the  chapter  "Spies" 489 

Discussion  of  the  chapter  "  Means  of  injuring  the  enemy "     . 491 

Fifth  Meeting  (June  3,  1899) 493 

Discussion  of  the  chapter  "  Sieges  and  bombardments " 493 

Discussion  of  the  chapter  "Belligerents  and  the  care  of  the  wounded  in  neutral  States"  495 

Proposal   of   Mr.   Eyschen 495 

Sixth  Meeting  (June  6,  1899) 498 

Letter  of  Mr.  Eyschen   .       .' 498 

Adoption  of  a  vocu  to  refer  the  study  of  the  question  of  the  rights  and  duties  of  neu- 
trals to  a  subsequent  conference 499 

General  discussion  of  Chapters  I,  II  and  IX  of  the  draft  Declaration  of  Brussels     .  502 

Address  of  Mr.  Beernaert 502 

Address  of  Mr.  Martens 505 


CONTENTS 


xvn 


PAGE 

Seventh  Meeting   (June  8,   1899) 509 

Discussion  of  Chapter  I:  "Military  authority  over  the  territory  of  the  hostile  State"  .  509 

Proposals  of  his  Excellency  Mr.  Beernaert.    Adoption  of  Articles  1  and  2  .       .       .       .  512 

Provisional  voting  on  Articles  3,  4  and  5 514 

Eighth  Meeting   (June  10,  1899) 517 

Declaration  of  Sir  John  Ardagh .-  517 

Address  of  the  President 518 

Address  of  Mr.  Beernaert 519 

Discussion  of  Articles  3,  4,  etc 519 

Ninth  Meeting  (June  12,  1899) 525 

Appointment  of  the  drafting  committee 525 

Discussion  of  Articles  40,  41  and  42:  "Contributions  and  requisitions" 526 

Tenth  Meeting  (June  17,  1899) 534 

Report  of  the  drafting  committee.    Discussion  and  adoption  of  the  texts.    Amendment 
of  Article  5,  and  of  Articles  40  to  42,  and  the  adoption  of  the  first  paragraph 

of  Article  6 535 

Eleventh  Meeting  (June  20,  1899) 545 

Report  of  the  drafting  committee  on  Articles  6  (second  paragraph),  7  and  8  .       .       .  545 
Examination  of  Chapter  II :  "  Those  who  are  to  he  recognised  as  belligerents;  com- 
batants and  non-combatants"      . 546 

Declaration  of  the  President 547 

Twelfth  Meeting  (July  1,  1899) 556 

Second  reading  of  the  articles.    Report  of  Mr.  Rolin 556 

Annexes 

A.  New  draft  of  Articles  1  to  6  (combined  with  Articles  40  to  42)  proposed  by  Mr. 
Rolin,  reporter 559 

B.  Texts  proposed  to  the  subcommission  in  the  name  of  the  drafting  committee  .       .  561 

C.  Report  addressed  to  the  subcommission  in  the  name  of  the  drafting  committee  .       .  562 

D.  Text  of  the  draft  Declaration  of  Brussels  of  1874  and  that  adopted  on  first  reading 

by  the  subcommission 564 


PART  IV.— THIRD  COMMISSION 

A.   PLENARY  MEETINGS 
Mr.  Leon  Bourgeois  presiding 

First  Meeting    (May  23,  .1899) 581 

Address  of  the  President 581 

Observation  of  Baron  Bildt  on  the  subject  of  press  service '    .  582 

Second  Meeting   (May  26,   1899) ; 583 

Filing  of  two  Russian  documents  relative  to  arbitration 583 

Distribution  of  the  work 583 

Filing  of  a  motion  by  Sir  Julian  Pauncefote       .   • 584 

Appointment  of  the  committee  of  examination 585 


xviii  CONTENTS 

PAGE 

Third  Meeting  (June  5  1899) 586 

Condolence  to  Doctor  Roth 586 

Report  of  Chevalier  Descamps  on  the  work  of  the  committee  of  examination   (Good 

offices  and  mediation) 587 

General  discussion  and  adoption  at  first  reading  of  Articles  1  to  8  of  the  draft 

Convention 589 

Fourth  Meeting   (July  7,   1899) 593 

Statement  of  Chevalier  Descamps  on  the  work  of  the  committee  of  examination  .       .  593 

Fifth  Meeting  (July  17,  1899) 603 

General  discussion  and  adoption  at  first  reading  of  Articles  14  to  56  (Arbitration)   .       .  604 
Addresses  of  Messrs.  Asser,  Martens,  Holls,  Descamps  and  Seth  Low     .       .       .     618-624 

Sixth  Meeting  (July  19,  1899) 626 

Discussion  and  adoption  at  first  reading  of  Section  3  (Commissions  of  inquiry)   .       .  626 

Address  of  Mr.  Beldiman .       .  626 

Address  of   Mr.  Veljkovitch 635 

Declaration  of  Mr.  Delyanni 637 

Address  of  Mr.   Stancioflf 637 

Declaration  of  Mr.  Rolin 638 

Address  of   Chevalier   Descamps 639 

Address  of  Mr.  Martens 640, 

Proposal  of  Mr,  Eyschen 644 

Seventh  Meeting   (July  20,  1899) 647 

Second  reading  and  adoption  of   Articles    1   to  9    (Good  offices  and  mediation)    and 

14  to  36   (Tribunal  of  arbitration) ■ 647 

Declaration  of   Mr.   Miyatovitch,  on   Section  2 650 

Declarations  of  Mr.  Beldiman  on  Articles  15,  16  and  18 650 

Discussion  on  Article  27 658 

Addresses  of  Baron  d'Estournelles,  Doctor  Zorn  and  Messrs.  Veljkovitch  and  Odier     658-661 

Address  of  Mr.  Bourgeois 662 

Eighth   Meeting    (July  22,   1899) 669 

Second  reading  and  adoption  of  Articles  9  to  14  and  37  to  56 669  • 

Declarations  of  the  delegates  of  Greece  and  of  Serbia 669 

Proposal  of  Mr.  Beldiman  on  the  subject  of  Article  9 669 

Statement   of    Chevalier    Descamps 670 

Address  of   Mr.   Veljkovitch 680 

Reply  of  the  President 681 

Allocution  of  hi^   Excellency  Count  Nigra 681 

Ninth  Meeting   (July  25,  1899) 683 

Declaration  of  his  Excellency  Turkhan  Pasha,  delegate  of  Turkey 683 

Adoption  of  the  report  of  Chevalier  Descamps   {see  plenary  meeting  of  the  Confer- 
ence of  July  25 683 


CONTENTS  xix 


B.   COMMITTEE  OF  EXAMINATION 

Mr.  Leon  Bourgeois  presiding 

PAGE 

First  Meeting  (May  26,  1899) 687 

Organization  of   the   Bureau 687 

Filing  of  the  drafts  and  amendments  which   serve  as   a  basis   for  the  work  of   the- 

committee •  687 

Second  Meeting    (May  29,   1899) 688 

Address  of  Chevalier  Descamps,  president  of  the  committee 688 

Examination,    on    first    reading,    of    the    Russian    draft    relative    to    Mediation    and 

Good   offices 691 

Discussion  of  Articles  1,  2,  3,  4,  5,  6  (annex  1) 691 

Filing  by  Mr.  Asser  of  a  proposal  concerning  the  right  of  intervention   ....  691 

Third  Meeting   (May  31,  1899) 695 

Examination  of  the  proposal  presented  by  Mr.  Holls  on  the  subject  of  Special  mediation  696 

Statement  of  reasons  by  Mr.  Holls 696 

Adoption  of  a  new  article    (annex  7) 698 

Fourth   Meeting    (June  3,   1899) 700 

Examination,  on  first  reading,  of  the  Russian  draft  relative  to  International  arbitration  700 

Discussions  of  Articles  7,  8,  9,  10,  11,  12  (annex  1) 700 

Fifth  Meeting  (June  7,  1899) 705 

Examination,  on  first  reading,  of  the  Russian  draft  relative  to  International  arbitration 

(continued) "  70S 

New  draft  of  Article  10  presented  by  Messrs.  Asser,  Descamps  and  Renault  .       .       .  705 

New  discussion  of  Article  10 705 

Adoption,  at  first  reading,  of  the  draft  on  international  arbitration  (see  annex  9)   .       .  707 

Sixth  Meeting  (June  9,  1899) 709 

General  discussion  on  the  principle  of  a  Perm-anent  tribunal  of  arbitration     .       .       .  709 

Declaration  of  l\Ir.  Leon  Bourgeois  in  the  name  of  the  French  delegation  \       .       .       .  709 

Declaration  of  his  Excellency  Sir  Julian  Pauncefote 711 

Declaration  of  Chevalier  Descamps '.....  712 

Declaration  of   Doctor   Zorn 712 

Replies  of  Mr.  Asser  and  his  Excellency  Count  Nigra 713,  714 

Commentary  on  the  Russian  draft  by  Mr,  Martens 714 

Declarations  of  Messrs.  Odier,  Lammasch  and  Holls 715 

Examination,  on  first  reading,  of  the  draft  of  the  Permanent  tribunal  of  arbitration 

presented  by  his  Excellency  Sir  Julian  Pauncefote   .       .       .       " 717 

Discussion  of  Articles  1,  2,  3  (annex  2) .       .       .       .  717 

Seventh  Meeting  (June  12,  1899) 720 

Examination,  on  first  reading,  of  the  draft  of  the  Permanent  tribunal  of  arbitration 

presented  by  his  Excellency  Sir  Julian  Pauncefote   (continued)    .       .       .       .    •    .  720 

Declaration  of  Mr.  Holls  relative  to  the  American  draft  of  the  international  tri- 
bunal   (annex  7) ^ 720 

Discussion  of  Articles  3,  4,  5  and  6   (annex  2) 720 

Eighth   Meeting    (June  21,  1899) 725 

Examination,  on  first  reading,  of  the  draft  of  the  Permanent  tribunal  of  arbitration 

presented  by  his  Excellency  Sir  Julian  Pauncefote    (continued) 725 


XX  CONTENTS 

PAGE 

Discussion  of  Articles  6  and  7  (annex  2) 725 

Examination,  on  first  reading,  of  the  Russian  draft  relative  to  International  com- 
missions of  inquiry 727 

Discussion  of  Articles  14,  15,  16,  17  and  18  (annex  1) 727 

Ninth   Meeting    (June  23,   1899)      .       .       .       .     ' 730 

Observation  of  Mr.  Martens  on  the  subject  of  Article  14   (Commissions  of  inquiry) 

modified  in  the  preceding  meeting 730 

New  modification  of  this  article 731 

Article   13 731 

Examination,  on  first  reading,  of  the  Russian  draft  Arbitral  code  (annex  1,  B)    .       .  732 

Discussion  of  Articles  1,  2,  3,  4,  5  and  6  (annex  1,  B) 732 

Tenth  Meeting    (June  26,   1899) 736 

Examination,   on   first   reading,   of   the    Russian    draft   Arbitral   code    (annex    1,    B) 

(continued) 736 

Discussion  of  Articles  7,  8,  9,  10,  11,  12,  13,  14,  15,  16,  17,  18,  19,  20,  21,  22  .       .       .       .     736 
Discussion  of  the  phrase  "  state  the  reason  on  which  it  is  based  "  23,  24.    Holls  amend- 
ment on  the  subject  of  the  revision  of  arbitral  awards,  24  bis  (Asser  proposal), 
25,  26  and  27  (annex  1,  B) 740 

Eleventh  Meeting  (June  30,  1899) 745 

Distribution  of  the  text  of  the  articles  adopted  on  first  reading  by  the  committee  of 
examination:  1.  Good  offices  and  mediation  (annex  8)  ;  2.  International  arbitration 
(the  system  of  arbitration  and  the  disputes  subject  thereto)  ;  3.  Permanent  tri- 
bunal of  arbitration ;  4.  Arbitral  code  (arbitration  procedure)    (annex  9)    .        .       .     745 

Examination,  on  second  reading,  of  the  draft  Arbitral  code    (arbitration  procedure) 

(annex  9) 745 

Discussions  of  Articles  1  to  25.  Holls  amendment  on  the  subject  of  the  revision  of 

arbitral   awards    (Article  24) 745 

Twelfth  Meeting   (July  1,  1899) 752 

Examination,  on  second  reading,  of  the  draft  Arbitral  code    (arbitration  procedure) 

(annex  9)    (continued) 752 

Vote  on  the  principle  of  revision  (Holls  amendment;  Article  24  according  to  the  draft 

presented  by   Mr.   Asser) 752 

Admission  of  the  principle 752 

Discussion  of  the  procedure  of  revision  of  the  arbitral  awards 752 

Vote  on  a  new  article  providing  for  the  revision  (Article  54  of  annex  10)       .  754 
Examination,  on  second  reading,  of  the  draft  of  the  Permanent  tribunal  of  arbitra- 
tion   (annex  9) 755 

Observation  of  Doctor  Zorn  on  the  subject  of  the  title.     Adoption  of  the  following 

title:  the  Permanent  Court  of  Arbitration 755 

Discussion  of  Articles  1,  2,  3,  4       .       .       ' 756 

Motion  of  Messrs.  Bourgeois  and  d'Estoumelles  de  Constant  tending  to  facilitate 
and  call  the  attention  of  the  Powers  to  the  use  of  the  Permanent  Court  of 
Arbitration 757-758 

Thirteenth  Meeting   (July  3,   1899) 759 

Examination,  on  second  reading,  of  the  draft  of  the  Permanent  Court  of  Arbitta- 

tion    (annex    9)     (cdntinued) 759 

Proposal  of  d'Estoumelles  on  the  subject  of  calling  attention  to  arbitration  ..       .       .  759 

General  discussion.    Adoption  of  Article  27  (annex  10) 761 

Discussion  of  Articles  5,  6,  7,  8  (annex  9) 765 

Examination,  on  second  reading,  of  the  draft  International  commissions  of  inquiry  .  765 


CONTENTS  xxi 

PAGE 

Fourteenth  Meeting   (July  4,  1899) 767 

Examination,  on  second  reading,  of  Article  10  of  the  Russian  draft  relative  to  the 

cases  of  obligatory  arbitration   (annexes  1   and  9) 767 

Declaration  of  Doctor  Zorn  in  the  name  of  the  German  Government       .       .       .       .767 

Abandonment  of  the  enumeration  of  cases  of  obligatory  arbitration 767 

Adoption  of  a  compromise  text  proposed  by  Chevalier  Descamps  to  replace  Articles 

9,  10  and  11  of  the  Russian  draft 768 

Adoption  of  the  following  text  to  designate  the  whole  of  the  texts  agreed  upon  by' 
the    committee:     Convention    for    the    pacific    settlement    of    international    dis- 
putes   (annex    10) 771 

Fifteenth  Meeting   (July  15,  1899) .773 

Filing  of  memoranda  by  Baron  Bildt,  Messrs.  d'Ornellas  de  Vasconcellos,  Rolin  and 

Stancioff  on  Article  10 773 

Examination,  on  third  reading,  of  Draft  Convention  for  the  pacific  settlement  of  inter- 
national  disputes    (annex    10) 773 

Discussion  of  Articles  1,  7  and  8  (d'Ornellas),  Article  9  (d'Ornellas-Bildt),  Articles  V6 
and  17    (Bildt),  Article  20   (Zorn),  Articles  23,  24   (Rolin),  Article  25    (Bildt), 

Article  27  (Rolin-Stancioff),  Article  28  (Bildt)    . 773 

Sixteenth  Meeting  (July  18,  1899) 780 

General  discussion  on  the  question  of  the  International  commissions  of  inquiry  .  .  780 
Continuation  of  the  examination  of  the  draft  Convention   for  the  Pacific  settlement 

of  international  disputes 783 

Discussion  of  Articles  21   (Macedo),  22,  23   (Macedo-de  Grelle  Rogier),  24   (Rolin), 

26  (Renault),  27,  28,  31,  51-54,  56 783 

Seventeenth  Meeting   (July  19,  1899) 790 

Examination  of  Articles  9  to  13  relative  to  the  International  commissions  of  inquiry 

(annex    10) 790 

Discussion  of  Article  10.    Adoption  of  the  principle  of  the  Eyschen  amendment   .       .  791 

Discussion  and   modification   of   Article   13 791 

Discussion  and  modification  of  Article  9 793 

Eighteenth   Meeting    (July  21,   1899) 795 

Examination  of  the  amendment  to  Article  36  presented  by  Mr.  Holls  in  the  name  of 

the  delegation  of  the  United  States  of  America 795 

Questions   of   incompatibilities     .       .       .       -. 795 

Insertion  in  the  report  and  minutes  of  the  motion  of  Chevalier  Descamps     .       .       .  797 


ANNEXES  TO  THE  MINUTES  OF  THE  COMMITTEE  OF  EXAMINATION 

1.  A.  Outlines  for  the  preparation  of  a  draft  convention  to  be  concluded  between  the 

Powers  taking  part  in  the  Hague  Conference   (Russian  draft)    .       .       .  797 

B.  Draft  arbitral  code  (Russian  draft) 801 

C.  Commentary  on  Article  5  of  the  Russian  draft 804 

D.  Commentary  on  Article  10  of  the  Russian  draft 808 

2.  A.  Declaration  of  his  Excellency  Sir  Julian  Pauncefote •  813 

B.  Permanent    tribunal    of    arbitration    (proposal    of    his    Excellency    Sir    Julian 

Pauncefote) 813 

3.  A.  Russian  proposal;  articles  which  might  replace  Article  13   (Draft  of  tribunal 

of   arbitration)  - 815 

B.  Appendix :  Organization  of  the  tribunal  of  arbitration 816 

4.  Amendment  to  the  Russian   draft  of   stipulations   on   mediation  and  arbitration, 

filed  by  his  Excellency  Count  Nigra 817 


xxii  CONTENTS 

PAGE 

5.  General  summary  of  clauses  of  mediation  and  arbitration,  by  Chevalier  Descamps  .  818 

6.  Holls  proposal  on  the  subject  of  the  institution  of  special  mediation  ....  833 

7.  Plan  of  international  tribunal   (proposal  of  the  commission  of  the  United  States 

of  America  submitted  to  the  committee  of  examination  in  the   meeting 

of   May  31,   1899 833 

8.  Good   offices   and   mediation    {text  adopted   by   the   committee   in   regard   to    the 

initial  Russian   text) 835 

9.  International  arbitration.     Permanent  tribunal  of  arbitration.     International  com- 

missions of  inquiry   (text  adopted  by  the  committee) 837 

10.  Draft  Convention   for  the  pacific  settlernent  of   international  disputes    (final  text 

presented  to  the  Third  Commission  by  the  committee  of  examination)      ,  849 

Section  1.    Maintenance  of  general  peace   (Article  1) 849 

Section  2.    Good  offices  and  mediation  (Articles  2  to  9) 849 

Section  3.    International  commissions  of  inquiry  (Articles  9  to  14)   ....  851  • 

Section  4.    International  arbitration 851 

I.   The  system  of  arbitration   (Articles  14  to  20) 851 

II.   The  Permanent  Court  of  Arbitration   (Articles  20  to  29)    .       .  852 

III.   Arbitration  procedure  (Articles  29  to  56,  inclusive)   ....  854 

11.  Amendment  proposed  by  Mr.  Asset  to  Article  24 858 


PART  I 
PLENARY  CONFERENCE 


[1] 

LIST  OF   THE   GOVERNMENTS 

REPRESENTED  AT   THE   PEACE 

CONFERENCE  AT   THE   HAGUE  AND 

THEIR    DELEGATES 

GERMANY 

His  Excellency- Count  Munster,  German  Ambassador  at  Paris,  first  delegate, 
plenipotentiary. 

The  Baron  von-  Stengel,  professor  at  the  University  of  Munich,  second 
delegate. 

Dr.  ZoRN,  Judicial  Privy  Councilor,  professor  at  the  University  of  Konigs- 
berg,  scientific  delegate. 

Colonel  Gross  voisf  Schwarzhoff,  Commandant  of  the  5th  Infantry,  No.  93, 
technical  delegate. 

Captain  Siegel,  Naval  Attache  to  the  Imperial  Embassy  at  Paris,  technical 
delegate. 

Mr.  d'Erckert,  Secretary  of  Legation,  assistant  secretary. 

AUSTRIA-HUNGARY 

His  Excellency  Count  R.  von  Welsersheimb,  Ambassador  Extraordinary, 
first  delegate,  plenipotentiary. 

Mr.  A.  Okolicsanyi  von  Okolicsna,  Envoy  Extraordinary  and  Minister 
Plenipotentiary  at  The  Hague,  second  delegate,  plenipotentiary. 

Mr.  Cajetan  Merey  von  Kapos-Mere,  Counselor  of  Embassy  and  Chief 
of  Cabinet  of  the  Minister  for  Foreign  Affairs,  assistant  delegate. 

Mr.  Heinrich  Lammasch,  professor  at  the  University  of  Vienna,  assistant 
delegate. 

Mr.  Victor  von  Khuepach  zu  Reid,  Zimmerlehen  und  Haslburg^  Lieu- 
tenant Colonel  on  the  General  Staff,  assistant  delegate. 

Count  Stanislaus  Soltyk,  Captain  of  Corvette,  assistant  delegate. 

BELGIUM 

His  Excellency  Mr.  Auguste  Beernaert,  Minister  of  State,  President  of  the 
Chamber  of  Representatives,  delegate  plenipotentiary. 
[2]   The  Count  de  Grelle  Rogier,  Envoy  Extraordinary  and  Minister  Pleni- 
potentiary at  The  Hague,  delegate  plenipotentiary. 
The  Chevalier  Descamps,  Senator,  delegate  plenipotentiary. 
Mr.  Maurice  Joostens,  Counselor  of  Legation,  secretary  of  the  delegation. 


i.^>: 


LIST  OF  DELEGATES 


CHINA 


Mr.  Yang  Yu,  •Envoy  Extraordinary  and  Minister  Plenipotentiary  at  St. 
Petersburg,  delegate,  plenipotentiary. 

Mr.  Lou  TsENa-TSiANG,  second  delegate. 

Mr.  Hoo  Wei-teh,  second  delegate. 

Mr.  Ho  Yen-cheng,  Counselor  of  Legation,  assistant  delegate. 

Dr.  Kreyer,  Counselor  of  Legation,  interpreter. 

DENMARK 

Chamberlain  Fr.  Bille,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  London,  first  delegate  plenipotentiary. 

Mr.  J.  G.  F.  VON  ScHNACK,  Colonel  of  Artillery,  ex-Minister  for  War,  second 
delegate  plenipotentiary. 

Baron  Otto  Reedtz-Thott,  Secretary  of  the  Ministry  for  Foreign  Affairs, 
attache  of  the  delegation. 

SPAIN 

His  Excellency  >Duque  de  Tetuan,  ex-Minister  for  Foreign  Affairs,  first 
delegate  plenipotentiary. 

Mr.  W.  Ramirez  de  Villa  Urrutia,  Envoy  Extraordinary  and  Minister 
Plenipotentiary  at  Brussels,  delegate  plenipotentiary. 

Mr.  Arturo  de  Baguer,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  The  Hague,  delegate  plenipotentiary. 

The  Count  de  Serrallo,  Military  Attache  to  the  Spanish  Legation  at 
Brussels,  assistant  delegate. 

Mr.  Crespo,  Secretary  of  Embassy,  secretary  of  the  delegation. 

THE  UNITED  STATES  OF  AMERICA 

His  Excellency  Mr.  White,  United  States  Ambassador  at  Berlin,  delegate 
plenipotentiary. 

Mr.  Stanford  Newel,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  The  Hague,  delegate  plenipotentiary. 

The  Honorable  Seth  Low,  president  of  the  Columbia  University  at  New 
York,  delegate  plenipotentiary. 

Captain  A.  T.  Mahan,  United  States  Navy,  delegate  plenipotentiary. 

Mr.  W.  Crozier,  Captain  of  Artillery,  delegate  plenipotentiary. 

Mr.  F,  W.  Holls,  advocate  at  New  York,  delegate  and  secretary  of  the 
delegation. 

Mr.  Thomas  M.  MacGrath,  secretary  of  the  delegation. 

Mr.  James  Harris  Vickery,  secretary  of  the  delegation. 

Mr.  Thomas  Morrison,  secretary  of  the  delegation. 


LIST  OF  DELEGATES 


THE  UNITED  STATES  OF  MEXICO 

Mr.  DE  MiER,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at  Paris, 
delegate  plenipotentiary. 

Mr.  Zenil,  Minister  Resident  at  Brussels,  delegate  plenipotentiary. 

FRANCE 

Mr.  Leon  Bourgeois,  ex-President  of  Council,  ex-Minister  for  Foreign 
Affairs,  member  of  the  Chamber  of  Deputies,  first  delegate,  plenipotentiary. 

Mr.  Georges  Bihourd,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
The  Hague,  second  delegate,  plenipotentiary. 

The  Baron  d'Estournelles  de  Constant,  Minister  Plenipotentiary,  member 
of  the  Chamber  of  Deputies,  third  delegate,  plenipotentiary. 

Mr.  Pephau,  Rear  Admiral,  technical  delegate. 
[3]   Mr.  Mounter,  General  of  Brigade,  technical  delegate. 

Mr.  Louis  Renault,  professor  of  the  Faculty  of  Law  at  Paris,  technical 
delegate. 

Mr.  Albert  Legrand,  Secretary  of  Embassy  of  Second  Class,  secretary  of 
the  delegation,  secretary  of  the  conference. 

Mr.  A.  BoppE,  Secretary  of  Embassy  of  Second  Class,  secretary  of  the 
delegation. 

Mr.  M.  Jarousse  de  Sillac,  Attache  of  Embassy,  secretary  of  the  delegation, 
secretary  of  the  conference. 

Mr.  O.  Romberg,  Attache  of  Embassy,  secretary  of  the  delegation. 

Mr.  Louis  Legendre,  assistant  secretary. 

Baron  Pichon,  Lieutenant  of  Cavalry,  assistant  secretary. 

GREAT  BRITAIN  AND  IRELAND 

His  Excellency  Sir  Julian  Pauncefote,  G.C.B.,  G.C.M.G.,  Ambassador  of 
the  United  Kingdom  at  Washington,  first  delegate,  plenipotentiary. 

Sir  Henry  Howard,  K.C.M.G.,  C.B.,  Envoy  Extraordinary  and  Minister 
Plenipotentiary  at  The  Hague,  second  delegate,  plenipotentiary. 

Sir  John  A.  Fisher,  K.C.B.,  Vice  Admiral,  technical  delegate. 

Sir  J.  C.  Ardagh,  K.C.I.E.,  C.B.,  Major  General,  technical  delegate. 

Lieutenant  Colonel  C.  A  Court,  Military  Attache  at  Brussels  and  The  Hague, 
assistant  technical  delegate. 

Mr.  Richard  Ponsonby  Maxwell,  first  secretary  of  the  delegation. 

Mr.  Arthur  Peel,  second  secretary  of  the  delegation. 

Mr.  Ronald  James  Hamilton,  third  secretary  of  the  delegation. 

GREECE 

Mr.  Delyanni,  ex-President  of  the  Council,  ex-Minister  for  Foreign  Affairs, 
Envoy  Extraordinary  and  Minister  Plenipotentiary  at  Paris,  delegate  plenipo- 
tentiary. 

Mr.  Alexandre  Mercati,  Secretary  of  the  Minister. 


LIST  OF  DELEGATES 


ITALY 


His  Excellency  Count  Nigra,  Italian  Ambassador  at  Vienna,  Senator  of 
the  Kingdom,  first  delegate,  plenipotentiary. 

Count  A.  Zannini,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
The  Hague,  second  delegate,  plenipotentiary. 

Commander  Guido  Pompilj,  Deputy  in  the  Italian  Parliament,  third  delegate, 
plenipotentiary. 

The  Chevalier  Louis  Zuccari,  Major  General,  technical  delegate. 

The  Chevalier  Auguste  Bianco,  Captain,  Naval  Attache  to  the  Royal 
Embassy  at  London,  technical  delegate. 

Baron  Charles  Fasciotti,  Attache  of  Embassy,  assistant  secretary. 

Mr.  Ernest  Artom,  Attache  of  Legation,  assistant  secretary. 

JAPAN 

The  Baron  Hayashi,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
St.  Petersburg,  first  delegate,  plenipotentiary. 

Mr.  I.  MoTONO,-  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
Brussels,  second  delegate,  plenipotentiary. 

Colonel  Uehara„  technical  delegate.  • 

Captain  Sakamoto,  Japanese  Navy,  technical  delegate. 

Mr.  Nagao  Ariga,  professor  of  international  law  at  the  Superior  Military- 
School  and  the  Naval  School  of  Tokio,  technical  delegate. 

Mr.  NiSHi,  secretary  of  the  delegation. 

Mr.  Hagiwara,  secretary  of  the  delegation. 

LUXEMBURG 

His  Excellency  Mr.  Eyschen,  Minister  of  State,  President  of  the  Grand 
Ducal  Government,  delegate  plenipotentiary. 

The  Count  de  Villers,  Charge  d'Aflfaires  at  Berlin,  delegate  plenipotentiary. 

MONTENEGRO 
[4]  See  Russia. 

NETHERLANDS 

Jonkheer  A.  P.  C.  van  Karnebeek,  ex-Minister  for  Foreign  Affairs,  member 
of  the  Second  Chamber  of  the  States-General,  delegate  plenipotentiary. 

General  J.  C.  C.  den  Beer  Poortugael,  ex-Minister  for  War,  member  of 
the  Council  of  State,  delegate  plenipotentiary. 

Mr.  T.  M.  C.  AsSER,  member  of  the  Council  of  State,  delegate  plenipotentiary. 

Mr.  E.  N.  Rahusen,  member  of  the  First  Chamber  of  the  States-General, 
delegate  plenipotentiary. 

Captain  A.  P.  Tadema,  Chief  of  the  Staflf  of  the  Netherland  Navy,  technical 
delegate. 


LIST  OF  DELEGATES 


PERSIA 


General  Mirza  Riza  Khan,  Arfa-ud-Dovleh,  Envoy  Extraordinary  and 
Minister  Plenipotentiary  at  St.   Petersburg,  first  delegate,  plenipotentiary. 

Mirza  Samad  Khan,  Momtas-es-Saltaneh,  Counselor  of  Legation  at  St. 
Petersburg,  assistant  delegate. 

Mr.  Samuel  de  Poliakoff,  secretary  of  the  delegation. 

Baron  G.  de  Levi,  secretary  of  the  delegation. 

PORTUGAL 

The  Count  de  Macedo,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
Madrid,  delegate  plenipotentiary. 

Mr.  d'Ornellas  de  Vasconcellos,  Envoy  Extraordinary  and  Minister  Pleni- 
potentiary at  St.  Petersburg,  delegate  plenipotentiary. 

The  Count  de  Selir,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
The  Hague,  delegate  plenipotentiary. 

Captain  Ayres  d'Ornellas,  technical  delegate. 

Captain  Augusto  de  Castilho,  technical  delegate. 

Mr.  Jose  Ribeiro  da  Cunha,  First  Secretary  of  Legation,  secretary  of  the 
delegation. 

ROUMANIA 

Mr.  Alexandre  Beldiman,  Envoy  Extraordinary  and  Minister  Plenipo- 
tentiary at  Berlin,  first  delegate,  plenipotentiary. 

Mr.  Jean  N.  Papiniu,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
The  Hague,  second  delegate,  plenipotentiary. 

Aide-de-Camp  Colonel  Constantin  Coanda,  Director  of  Artillery  at  the 
Ministry  for  War,  technical  delegate. 

RUSSIA 

His  Excellency  Mr.  Staal,  Privy  Councilor,  Russian  Ambassador  at  London, 
delegate  plenipotentiary. 

Mr.  Martens,  permanent  member  of  the  Council  of  the  Imperial  Ministry  for 
Foreign  AflFairs,  Privy  Councilor,  delegate  plenipotentiary. 

Mr.  Basily,  Councilor  of  State,  Chamberlain,  Director  of  the  First  Depart- 
ment of  the  Imperial  Ministry  for  Foreign  Affairs,  delegate  plenipotentiary. 

Mr.  Raffalovich,  Councilor  of  State,  Agent  in  France  of  the  Imperial 
Ministry  for  Finance,  technical  delegate. 

Mr.  Gilinsky,  Colonel  on  the  General  Staff,  technical  delegate. 

Count  Barantzew,  Colonel  of  Horse  Artillery  of  the  Guard,  technical 
delegate. 

Captain  Scheine,  Russian  Naval  Agent  at  Paris,  technical  delegate. 

Mr.  Ovtchinnikow,  Naval  Lieutenant,  professor  of  jurisprudence,  technical 
delegate. 

Mr.  Priklonsky,  Gentlemen  of  the  Chamber,  Head  of  Division  of  the  First 
Department  of  the  Imperial  Ministry  for  Foreign  Affairs,  secretary  of  the 
delegation. 


LIST  OF  DELEGATES 


[5]   Mr.  N.  A.  GouRKO-RoMEiKO,  Second  Secretary  of  Embassy,  secretary  of 

the  delegation. 

Baron  M.  F.  de  Schilling,  Third  Secretary  of  the  Imperial  Ministry  for 
Foreign  Affairs,  secretary  of  the  delegation. 

Mr.  Hessen,  Head  of  the  Bureau  of  the  Imperial  Ministry  of  Justice, 
secretary  of  the  delegation. 

Mr.  BiRiLEFF,  secretary  of  the  technical  naval  delegate. 

SERBIA 

Mr.  MiYATOViTCH,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
London,  delegate  plenipotentiary. 

Colonel  Maschine,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
Cettinje,  delegate  plenipotentiary. 

Dr.  Voislave  Veljkovitch,  professor  of  the  Faculty  of  Law  at  Belgrade, 
assistant  delegate. 

SIAM 

Mr.  Phya  Suriya  Nuvatr,  Envoy  Extraordinary  and  Minister  Plenipo- 
tentiary at  Paris,  first  delegate,  plenipotentiary. 

Mr.  Phya  Visuddha  Suriya  Sakdi,  Envoy  Extraordinary  and  Minister 
Plenipotentiary  at  London,  second  delegate,  plenipotentiary. 

Mr.  Ch.  Corragioni  d'Orelli,  Counselor  of  Legation,  third  delegate. 

Mr.  Edouard  Rolin,  Siamese  Consul  General  in  Belgium,  fourth  delegate. 

Mr.  J.  A.  N.  Patijn,  attache  of  the  delegation. 

Mr.  Phra  Jayasurindr,  attache  of  the  delegation. 

SWEDEN  AND  NORWAY 

Baron  Bildt,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at  the 
Royal  Court  of  Italy,  delegate  plenipotentiary. 

Colonel  P.  H.  E.  Brandstrom,  Commander  of  the  First  Regiment  of  the 
Guard,  technical  delegate. 

Mr.  C.  A.  M.  DE  HjuLHAMMAR,  Commander  in  the  Royal  Navy,  technical 
delegate. 

Mr.  W.  KoNOW,  President  of  the  Odelsting,  technical  delegate. 

Major  General  J.  J.  Thaulow,  Surgeon  General  of  the  Army  and  Navy, 
technical  delegate. 

Mr.  F.  DE  Rappe,  Secretary  of  the  Ministry  for  Foreign  Affairs,  secretary 
of  the  delegation. 

SWITZERLAND 

Dr.  Arnold  Roth,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
Berlin,  delegate  plenipotentiary. 

Colonel  Arnold  Kunzli,  National  Councilor,  delegate. 

Mr.  Edouard  Odier,  National  Councilor,  delegate,  plenipotentiary. 

Mr.  A.  SuTER,  Assistant  Secretary  of  the  Political  Federal  Department, 
secretary  of  the  delegation. 


LIST  OF  DELEGATES 


TURKEY 


His  Excellency  Turkhan  Pasha,  ex-Minister  for  Foreign  Affairs,  member 
of  the  Council  of  State,  first  delegate,  plenipotentiary. 

His  Excellency  Noury  Bey,  Secretary  General  to  the  Ministry  for  Foreign 
Affairs,  delegate  plenipotentiary. 

'His  Excellency  Abdullah  Pasha,  General  of  Division  of  the  Staff,  delegate 
plenipotentiary. 

His  Excellency  Mehemed  Pasha,  Rear  Admiral,  delegate  plenipotentiary. 

YoussouF  Bey,  Head  of  the  Cabinet  of  the  Ministry  for  Foreign  Affairs, 
secretary  of  the  delegation. 

Aghiah  Bey,  Assistant  Head  of  the  Bureau  of  Translation  of  the  Ministry 
for  Foreign  Affairs,  secretary  of  the  delegation. 

Djevad  Bey,  Lieutenant  Colonel,  secretary  of  the  delegation. 
[6]  Cherif  Bey,  Assistant  to  Legal  Councillors  of  the  sublime  Porte,  secretary 

to  the  delegation. 

BULGARIA 

Dr.  D.  Stancioff,  Diplomatic  Agent  at  St.  Petersburg,  first  delegate,  pleni- 
potentiary. 

Major  Chr.  Hessaptchieff,  Military  Attache  at  Belgrade,  second  delegate, 
plenipotentiary. 


BUREAU  OF  THE  CONFERENCE 

Honorary  President:  His  Excellency  Mr.  W.  H.  de  Beaufort,  Minister  for 
Foreign  Affairs  of  Her  Majesty  the  Queen  of  the  Netherlands. 

President:  His  Excellency  Mr.  Staal. 

Vice  President:  Jonkheer  A.  P.  C.  van  Karnebeek. 


SECRETARIAT 


Secretary  general:  Jonkheer  J.  C.  N.  van  Eys,  Resident  Minister  of  Her  Majesty 
the  Queen  of  the  Netherlands ; 

Assistant  secretary  general:  Mr.  Raffalovich,  Councilor  of   State,  technical 
delegate  of  Russia; 

Secretaries: 

Mr.  Albert  Legrand,  Secretary  of  Embassy  of  France ; 
Mr.  Edouard  de  Grelle  Rogier,  First  Secretary  of  the  Legation  of  Belgium ; 
Chevalier  W.  de  Rappard,  Secretary  of  Legation  of  the  Netherlands ; 
Jonkheer    A.    G.    Schimmelpenninck,    Secretary    of    Legation    of    the 

Netherlands ; 
Mr.  Max  Jarousse  de  Sillac,  Attache  of  Embassy  of  France; 
Jonkheer  J.  J.  Rochussen,  Assistant  Head  of  the  Bureau  of  the  Ministry 
for  Foreign  Affairs  at  The  Hague; 

Technical  secretaries: 

Mr.  G.  J.  C.  A.  Pop,  Captain  on  the  Staff ; 

Mr.  C.  E.  Dittlinger,  Lieutenant  of  the  Royal  Navy. 

Assistants  to  the  Secretariat 

Mr.  d'Erckert,  Secretary  of  the  German  Legation. 
Jonkheer  H.  A.  van  Karnebeek. 


[7] 

OPENING  MEETING 

MAY  18,  1899 


The  Governments  of  Germany,  the  United  States  of  America,  Austria- 
Hungary,  Belgium,  China,  Denmark,  Spain,  France,  the  United  Kingdom  of 
Great  Britain  and  Ireland,  Greece,  Italy,  Japan,  Luxemburg,  Mexico,  Montenegro, 
the  Netherlands,  Persia,  Portugal,  Roumania,  Russia,  Serbia,  Siam,  Sweden  and 
Norway,  Switzerland,  Turkey  and  Bulgaria,  having,  on  the  proposal  of  the 
Government  of  His  Majesty  the  Emperor  of  All  the  Russias,  and  on  the  invitation 
of  Her  Majesty  the  Queen  of  the  Netherlands,  engaged  to  seek  the  most  effective 
means  of  ensuring  to  the  peoples  a  lasting  peace,  and  of  limiting  the  progressive 
development  of  military  armaments,  the  delegates  of  the  said  Governments  are 
united  in  conference  to-day  May  18,  1899,  at  2  o'clock  in  the  Palace  in  the  Wood. 

Present : 
For  Germany: 

His  Excellency  Count  Munster,  German  Ambassador  at  Paris,  first  delegate. 

The  Baron  von  Stengel,  professor  at  the  University  of  Munich,  second 
delegate. 

Dr.  ZoRN,  Judicial  Privy  Councilor,  professor  at  the  University  of  Konigs- 
berg,  scientific  delegate. 

Colonel  Gross  von  Schwarzhoff,  Commandant  of  the  5th  Regiment  of 
Infantry,  No.  94,  technical  delegate. 

Captain  Siegel,  Naval  Attache  to  the  Imperial  Embassy  at  Paris,  technical 
delegate. 

For  the  United  States  of  America: 

His  Excellency  Mr.  White,  United  States  Ambassador  at  Berlin,  delegate. 

Mr.  Stanford  Newel,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
The  Hague,  delegate. 

The  Honorable  Seth  Low,  president  of  the  Columbia  University  at  New 
York,  delegate. 

Captain  A.  T.  Mahan,  United  States  Navy,  delegate. 

Mr.  W.  Crozier,  Captain  of  Artillery,  delegate. 

For  Austria-Hungary : 

His  Excellency  Count  R.  von  Welsersheimb,  Ambassador  Extraordinary, 
first  delegate. 

Mr,  A.  Okolicsanyi  von  Okolicsna,  Envoy  Extraordinary  and  Minister 
Plenipotentiary  at  The  Hague,  second  delegate. 

9 


10  PLENARY  CONFERENCE 

Mr.  Cajetan  Merey  von  Kapos-Mere,  Counselor  of  Embassy  and  Chief 
of  Cabinet  of  the  Minister  for  Foreign  Affairs,  assistant  delegate. 

Mr.  Heinrich  Lammasch,  professor  at  the  University  of  Vienna,  assistant 
delegate. 

Mr.  Victor  von  Khuepach  zu  Reid,  Zimmerlehen  und  Haslburg,  Lieu- 
tenant Colonel  on  the  General  Staff,  assistant  delegate. 

Count  Stanislaus  Soltyk,  Captain  of  Corvette,  assistant  delegate. 

For  Belgium: 

His  Excellency  Mr.  Auguste  Beernaert,  Minister  of  State,  President  of  the 
Chamber  of  Representatives,  delegate.       ♦ 

The  Count  de  Grelle  Rogier,  Envoy  Extraordinary  and  Minister  Pleni- 
potentiary at  The  Hague,  delegate. 

The  Chevalier  Descamps,  Senator,  delegate. 

For  China: 

Mr.  Yang  Yu,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at  St. 
Petersburg,  delegate. 

[8]  For  Denmark: 

Chamberlain  Fr.  Bille,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  London,  first  delegate. 

Mr.  J.  G.  F.  VON  Schnack,  Colonel  of  Artillery,  ex-Minister  for  War,  second 
delegate. 

For  Spain: 

His  Excellency  Duque  de  Tetuan,  ex-Minister  for  Foreign  Affairs,  first 
delegate. 

Mr.  W.  Ramirez  de  Villa  Urrutia,  Envoy  Extraordinary  and  Minister 
Plenipotentiary  at  Brussels,  delegate. 

Mr.  Arturo  de  Baguer,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  The  Hague,  delegate. 

The  Count  de  Serrallo,  Colonel,  Military  Attache  to  the  Spanish  Legation 
at  Brussels,  technical  delegate. 

For  France: 

Mr.  Leon  Bourgeois,  ex-President  of  Council,  .ex-Minister  for  Foreign 
Affairs,  member  of  the  Chamber  of  Deputies,  first  delegate. 

Mr.  Georges  Bihourd,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  The  Hague,  second  delegate. 

The  Baron  d'Estournelles  de  Constant,  Minister  Plenipotentiary,  member 
of  the  Chamber  of  Deputies,  third  delegate. 

Mr.  Pephau,  Rear  Admiral,  technical  delegate. 

Mr.  Mounier,  General  of  Brigade,  technical  delegate. 

Mr.  Louis  Renault,  professor  of  the  Faculty  of  Law  at  Paris,  technical 
delegate. 


OPENING  MEETING,  MAY  18,  1899  J.1 

United  Kingdom  of  Great  Britain  and  Ireland: 

His  Excellency  Sir  Julian  Pauncefote,  G.C.B.,  G.C.M.G.,  Ambassador  of 
the  United  Kingdom  at  Washington,  first  delegate. 

Sir  Henry  Howard,  K.C.M.G.,  C.B.,  Envoy  Extraordinary  and  Minister 
Plenipotentiary  at  The  Hague,  second  delegate. 

Sir  John  A.  Fisher,  K.C.B.,  Vice  Admiral,  technical  delegate. 

Sir  J.  C.  Ardagh,  Major  General,  technical  delegate. 

For  Greece: 

Mr.  Delyanni,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at  Paris, 
delegate. 

For  Italy: 

His  Excellency  Count  Nigra,  Italian  Ambassador  at  Vienna,  Senator  of  the 
Kingdom,  first  delegate. 

Count  A.  Zannini,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
The  Hague,  second  delegate. 

The  Chevalier  Louis  Zuccari,  Major  General,  technical  delegate. 

The  Chevalier  Auguste  Bianco,  Captain,  Naval  Attache  to  the  Royal 
Embassy  at  London,  technical  delegate. 

For  Japan: 

The  Baron  Hayashi,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
St.  Petersburg,  first  delegate. 

Mr.  L  Motono,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
Brussels,  second  delegate. 

Colonel  Uehara,  technical  delegate. 

Captain  Sakamoto,  Japanese  Navy,  technical  delegate. 

For  Luxemburg: 

His  Excellency  Mr.  Eyschen,  Minister  of  State,  President  of  the  Grand 
Ducal  Government,  delegate. 

The  Count  de  Villerc,  Charge  d' Affaires  at  Berlin,  delegate. 

For  Mexico: 

•Mr.  de  Mier,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at  Paris, 
delegate. 

Mr.  Zenil,  Minister  Resident  at  Brussels,  delegate. 

For  Montenegro: 

The  delegation  of  Russia : 

For  the  Netherlands: 

Jonkheer  A.  P.  C.  van  Karnebeek,  ex-Minister  for  Foreign  Affairs,  member 
of  the  Second  Chamber  of  the  States-General,  delegate. 

General  J.  C.  C.  den  Beer  Poortugael,  ex-Minister  for  War,  member  of 
the  Council  of  State,  delegate. 


12  PLENARY  CONFERENCE 

Mr.  T.  M.  C.  AssER,  member  of  the  Council  of  State,  delegate. 

Mr.  E.  N.  Rahusen,  member  of  the  First  Chamber  of  the  States-General, 
delegate. 

Mr.  A.  P.  Tadema,  Chief  of  the  Staff  of  the  Netherland  Navy,  technical 
delegate. 

[9]  For  Persia: 

General  Mirza  Riza  Khan,  Arfa-ud-Dovleh,  Envoy  Extraordinary  and 
Minister  Plenipotentiary  at  St.  Petersburg,  first  delegate. 

Mirza  Samad  Khan,  Momtas-e^-Saltaneh,  Counselor  of  Legation  at  St. 
Petersburg,  assistant  delegate. 

For  Portugal: 

The  Count  de  Macedo,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  Madrid,  delegate. 

Mr.  d'Ornellas  de  Vasconcellos,  Envoy  Extraordinary  and  Minister  Pleni- 
potentiary at  St.  Petersburg,  delegate. 

The  Count  de  Selir,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  The  Hague,  delegate. 

Captain  Ayres  d'Ornellas,  technical  delegate. 

For  Roumania: 

Mr.  Alexandre  Beldiman,  Envoy  Extraordinary  and  Minister  Plenipoten- 
tiary at  Berlin,  first  delegate. 

Mr.  Jean  N.  Papiniu,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
The  Hague,  second  delegate. 

Aide-de-Camp  Colonel  Constantin  Coanda,  Director  of  Artillery  at  the 
Ministry  for  War,  technical  delegate. 

For  Russia: 

His  Excellency  Mr.  Staal,  Privy  Councilor,  Russian  Ambassador  at  London, 
ifirst  delegate. 

Mr.  Martens,  permanent  member  of  the  Council  of  the  Imperial  Ministry 
for  Foreign  Affairs,  Privy  Councilor,  delegate. 

Mr.  Basily,  Councilor  of  State,  Chamberlain,  Director  of  the  First  Depart- 
ment of  the  Imperial  Ministry  for  Foreign  Affairs,  delegate. 

Mr.  Raffalovich,  Councilor  of  State,  Agent  in  France  of  the  Imperial 
Ministry  for  Finance,  technical  delegate. 

Mr.  Gilinsky,  Colonel  on  the  General  Staff,  technical  delegate. 

Count  Barantzew,  Colonel  of  Horse  Artillery  of  the  Guard,  technical 
delegate. 

Captain  Scheine,  Russian  Naval  Agent  at  Paris,  technical  delegate. 

Mr.  OvTCHiNNiKOw,  Naval  Lieutenant,  professor  of  jurisprudence,  technical 
delegate. 

For  Serbia: 

Mr.  MiYATOViTCH,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
London,  delegate. 


OPENING  MEETING,  MAY  18,  1899  J3 

Colonel  Maschine,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
Cettinje,  delegate. 

Dr.  VoiSLAVE  Veljkovitch,  professor  of  the  Faculty  of  Law  at  Belgrade, 
assistant  delegate. 

For  Siam: 

Mr.  Phya  Suriya  Nuvatr,  Envoy  Extraordinary  and  Minister  Plenipoten- 
tiary at  Paris,  first  delegate. 

Mr.  Phya  Visuddha  Suriya  Sakdi,  Envoy  Extraordinary  and  Minister 
Plenipotentiary  at  London,  second  delegate. 

Mr.  Ch.  Corragioni  d'Orelli,  Counselor  of  Legation,  third  delegate. 

Mr.  Edouard  Rolin,  Siamese  Consul  General  in  Belgium,  fourth  delegate. 

For  Sweden  and  Norway: 

Baron  Bildt,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at  the  Royal 
Court  of  Italy,  delegate. 

Colonel  P.  H.  E.  Brandstrom,  Commander  of  the  1st  Regiment  of  the 
Guard,  technical  delegate. 

Commander  C.  A.  M.  de  Hjulhammar,  Royal  Swedish  Navy,  technical 
delegate. 

Mr.  W.  KoNow,  President  of  the  Odelsting,  technical  delegate. 

Major  General  J.  J.  Thaulow,  Surgeon  General  of  the  Army  and  Navy, 
technical  delegate. 

For  Switzerland: 

Dr.  Arnold  Roth,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
Berlin,  delegate. 

Colonel  Arnold  Kunzli,  National  Councilor,  delegate. 
[10]    Mr.  Edouard  Odier,  National  Councilor,  delegate. 

For  Turkey: 

His  Excellency  Turkhan  Pasha,  ex-Minister  for  Foreign  Affairs,  member 
of  the  Council  of  State,  first  delegate. 

His  Excellency  Noury  Bey,  Secretary  General  to  the  Ministry  for  Foreign 
Affairs,  delegate. 

His  Excellency  Abdullah  Pasha,  General  of  Division  of  the  Staff,  delegate. 

His  Excellency  Mehemed  Pasha,  Rear  Admiral,  delegate. 

For  Bulgaria: 

Dr.  DiMiTRi  L  Stancioff,  Diplomatic  Agent  at  St.  Petersburg,  first  delegate. 
Major  Chr.  Hessaptchieff,  Military  Attache  at  Belgrade,  second  delegate. 

His  Excellency  Mr.  de  Beaufort,  Minister  of  Foreign  Affairs  of  the  Nether- 
lands, opens  the  meeting  and  makes  the  following  address : 

In  the  name  of  Her  Majesty  my  august  sovereign,  I  have  the  honor  to  bid  you 
welcome  and  to  express  here  my  profound  respect  for  His  Majesty  the  Emperor 
of  All  the  Russias  and  my  heartfelt  gratitude  to  him  for  the  great  honor  he  has 


14  PLENARY  CONFERENCE 

shown  our  country  in  designating  The  Hague  as  the  meeting-place  of  the  Peace 
Conference. 

In  taking  the  noble  initiative,  which  has  been  acclaimed  by  the  whole 
civilized  world,  it  was  the  desire  of  His  Majesty  the  Emperor  of  All  the  Russias 
to  realize  the  wish  of  one  of  his  most  illustrious  predecessors,  Emperor  Alexander 
I — that  all  the  sovereigns  and  all  the  nations  of  Europe  might  agree  to  live  to- 
gether like  brothers  and  to  help  each  other  in  their  mutual  needs.  Inspired  by 
these  noble  traditions  of  his  august  ancestor,  His  Majesty  proposed  to  all  the 
Governments  whose  representatives  are  here  assembled  the  meeting  of  a  Con- 
ference which  should  endeavor  to  discover  a  way  to  limit  these  never-ending 
armaments  and  to  prevent  the  calamities  which  threaten  the  entire  world. 

The  opening  day  of  this  Conference  will  be  without  dispute  one  of  the 
memorable  days  in  the  history  of  the  century  which  is  about  to  close.  It  coincides 
with  a  festival  which  all  His  Majesty's  subjects  celebrate  as  a  national  holiday, 
and  in  joining  with  all  my  heart  in  every  wish  for  the  happiness  of  this  magnani- 
mous sovereign,  I  shall  venture  to  act  as  the  interpreter  of  the  wishes  of  the 
whole  civilized  world  in  expressing  the  hope  that  His  Majesty  may  see  his 
generous  plans  realized  by  the  efforts  of  this  Conference  and  may  look  back  upon 
this  day  as  one  of  the  happiest  of  his  reign. 

Her  Majesty  my  august  sovereign,  moved  by  the  same  sentiments  as  inspired 
His  Majesty  the  Emperor  of  All  the  Russias,  has  been  pleased  to  place  at  the 
disposal  of  this  Conference  the  most  beautiful  historic  monument  which  she 
possesses.  The  hall  in  which  you  are  assembled  was  decorated  by  the  best  artists 
of  the  seventeenth  century  and  was  erected  by  the  widow  of  Prince  Frederick 
Henry  to  the  memory  of  her  noble  husband.  Among  the  groups  and  allegorical 
figures  which  will  call  forth  your  admiration  is  one  associated  with  the  Peace 
of  Westphalia  which  deserves  your  special  attention.  It  is  the  picture  which 
represents  Peace  entering  this  hall  to  close  the  temple  of  Janus.  I  hope,  gentlemen, 
that  this  beautiful  allegory  will  prove  to  be  a  good  omen  for  your  labors  and 
that  after  having  completed  them  you  will  be  able  to  say  that  Peace,  which  art 
brought  into  this  hall,  has  sallied  forth  to  shower  her  blessings  upon  the  whole 
human  race.     {Unanimous  assent.) 

I  have  the  honor  to  make  two  proposals:  first,  that  we  offer  His  Majesty 
the  Emperor  of  All  the  Russias  our  respectful  congratulations  by  telegraph  in 
the  following  terms : 

The  Peace  Conference  lays  at  the  feet  of  Your  Majesty  its  respectful 
congratulations  on  the  occasion  of  your  birthday  and  expresses  the  sincere 
desire  to  cooperate  in  accomplishing  the  great  and  noble  work  in  which  Your 
Majesty  has  generously  taken  the  initiative,  and  for  which  the  Conference 
begs  Your  Majesty  to  accept  its  humble  and  profound  gratitude.  (Unani- 
mous assent.) 

I  do  not  doubt  that  my  second  proposal  will  likewise  meet  with  your  unani- 
mous approval.  I  venture,  gentlemen,  to  express  the  wish  that  the  Ambassador 
of  His  Majesty  the  Emperor  of  All  the  Russias,  his  Excellency  Mr.  Staal,  whose 
wide  experience  in  practical  affairs  and  whose  eminent  qualities  will  do  much 
to  facilitate  the  noble  work  you  are  about  to  undertake,  be  chosen  president  of 
this  assembly. 

This  proposal  is  unanimously  adopted. 


OPENING  MEETING,  MAY  18,  1899  15 

His  Excellency  Mr.  Staal  accepts  the  presidency  and  makes  the  following 
address; 
[11]  Gentlemen;  My  first  duty  is  to  express  to  his  Excellency  the  Minister 
of  Foreign  Affairs  of  the  Netherlands  my  gratitude  for  the  noble  words 
he  has  just  uttered  concerning  my  august  master.  His  Majesty  will  be  deeply 
touched  by  the  lofty  sentiments  with  which  Mr.  de  Beaufort  was  inspired,  as  well 
as  by  the  spontaneity  with  which  the  members  of  this  assembly  have  joined  with 
him. 

H  it  was  on  the  initiative  of  the  Emperor  of  Russia  that  the  Conference  has 
met,  we  owe  it  to  Her  Majesty  the  Queen  of  the  Netherlands  that  we  are 
assembled  in  her  capital.  It  is  a  happy  presage  for  the  success  of  our  labors 
that  we  are  gathered  together  under  the  auspices  of  a  young  sovereign  whose 
charm  is  felt  far  and  wide  and  whose  heart,  ever  open  to  all  that  is  generous, 
has  shown  so  much  sympathy  for  the  cause  which  brings  us  here.  In  this  calm 
atmosphere  of  The  Hague,  in  the  midst  of  a  nation  which  is  so  conspicuous  a 
factor  in  world-wide  civilization,  we  have  before  our  eyes  a  striking  example 
of  what  valor,  patriotism,  and  untiring  energy  can  do  for  the  good  of  nations. 
It  was  upon  the  historic  soil  of  the  Netherlands  that  the  greatest  problems  of 
the  political  life  of  States  were  discussed;  here,  it  may  be  said,  was  the  cradle 
of  the  science  of  international  law ;  here  for  centuries  the  principal  negotiations 
between  European  Powers  have  been  conducted.  Finally,  it  was  here  that  the 
remarkable '  compromise  was  signed  which  brought  about  a  "  truce "  in  the 
bloody  strife  of  State  with  State.  We  are  therefore  in  the  midst  of  historic 
tradition. 

I  have  further  to  thank  the  Minister  of  Foreign  Affairs  of  the  Netherlands 
for  the  flattering — indeed  too  flattering — words  in  which  he  has  referred  to  me. 
I  am  sure  that  I  express  the  sentiments  of  every  member  of  this  high  assembly 
in  assuring  his  Excellency  Mr.  de  Beaufort  how  happy  we  should  have  been  to 
see  him  preside  over  our  meetings.  He  was  entitled  to  the  presidency  not  only 
because  of  the  precedents  followed  on  similar  occasions,  but  also  because  of  the 
qualities  he  has  shown  as  the  eminent  statesman  who  now  directs  the  foreign 
policy  of  the  Netherlands.  It  would,  moreover,  have  been  a  further  homage 
which  we  should  have  liked  to  pay  to  the  august  sovereign  who  has  deigned  to 
extend  to  us  her  gracious  hospitality. 

As  for  myself,  I  can  only  consider  that  I  am  chosen  because  I  am  the  pleni- 
potentiary of  the  Emperor  my  master,  the  august  initiator  of  the  Conference 
idea.  In  this  capacity  I  accept  with  profound  gratitude  the  high  honor  bestowed 
upon  me  by  the  Minister  of  Foreign  Affairs  in  proposing  me  for  the  presidency 
and  by  the  members  of  the  Conference  in  ratifying  this  selection.  I  shall  make 
every  effort  to  justify  this  mark  of  confidence,  but  I  fully  realize  that  the  advanced 
age  which  I  have  reached  is,  alas !  a  sad  privilege  and  a  feeble  support.  I  hope 
at  least,  gentlemen,  that  it  will  entitle  me  to  your  indulgence. 

I  now  propose  that  we  send  to  Her  Majesty  the  Queen,  whose  grateful  guests 
we  are,  the  message  which  I  am  about  to  read : 

The  members  of  the  Conference,  assembled  for  the  first  time  in  the 
beautiful  Palace  in  the  Wood,  hasten  to  lay  their  best  wishes  at  Your 
Majesty's  feet  and  to  beg  you  to  receive  the  homage  of  their  gratitude  for 
the  hospitality  which  you.  Madam,  have  so  graciously  deigned  to  offer  them. 


16  PLENARY  CONFERENCE 

I  propose  that  we  confer  upon  his  Excellency  the  Minister  of  Foreign  Affairs 
of  the  Netherlands  the  honorary  presidency  of  the  International  Peace  Con- 
ference, and  that  we  make  Jonkheer  van  Karnebeek,  first  delegate  of  the  Nether- 
lands, vice  president  of  this  assembly.     (Assent.) 

At  the  proposal  of  the  President,  the  Conference  nominates  for  the  com- 
position of  its  secretariat: 

As  secretary  general:  Jonkheer  J.  C.  N.  van  Eys,  Minister  Resident  of  Her 
Majesty  the  Queen  of  the  Netherlands. 

As  assistant  secretary  general :  Mr.  Raffalovich,  Councilor  of  State,  tech- 
nical delegate  of  Russia. 

As  secretaries : 

Mr.  Albert  Legrand,  Secretary  of  Embassy  of  France; 

Mr.  Edouard  de  Grelle  Rogier,  First  Secretary  of  Legation  of  Belgium; 

Chevalier  W.  de  Rappard,  Secretary  of  Legation  of  the  Netherlands ; 

Jonkheer  A.  G.  Schimmelpenninck,  Secretary  of  Legation  of  the  Nether- 
lands ; 

Mr.  Max  Jarousse  de  Sillac,  Attache  of  Embassy  of  France; 

Jonkheer  J.  J.  Rochussen,  Assistant  Head  of  the  Bureau  of  the  Ministry 
ior  Foreign  Affairs  at  The  Hague. 

As  technical  secretaries: 

Mr.  G.  J.  C.  A.  Pop,  Captain  on  the  Staff ; 

Mr.  C.  E.  Dittlinger,  Lieutenant  in  the  Royal  Navy. 

[12]  The  President  consults  the  Conference  as  to  the  advisability  of  keeping 
secret  its  deliberations  in  the  plenary  meetings  as  well  as  in  the  meetings 
■of  the  commissions. 

This  proposal  is  adopted. 

The  meeting  adjourns  at  2 :  30  o'clock. 


SECOND  MEETING 

MAY  20,   1899 


His  Excellency  Mr.  Staal  presiding. 

The  meeting  opens  at  11  o'clock. 

The  President  reads  the  telegram  that  Her  Majesty  the  Queen  has 
been  good  enough  to  address  to  him  in  reply  to  the  message  of  the  Conference. 

Hausbaden,  May  19,  1899. 
In  thanking  your  Excellency,  as  well  as  the  members  of  the  Peace 
Conference,  for  the  sentiments  expressed  in  your  telegram,  I  take  pleasure 
in  seizing  this  opportunity  to  repeat  my  wishes  of  welcome  to  my  country. 
I  most  sincerely  trust  that,  with  the  help  of  God,  the  work  of  the  Conference 
will  realize  the  generous  design  of  your  august  sovereign. 

(Signed)  Wilhelmina. 
{Applause.) 

The  President  then  reads  the  telegram  that  His  Majesty  the  Emperor 
of  Russia  has  been  good  enough  to  address  in  reply  to  the  telegram  of  the  Minister 
of  Foreign  Affairs  of  the  Netherlands. 

St.  Petersburg,  May  19,  1899. 
The  Emperor  begs  you  to  extend  to  the  Conference  his  sincere  thanks 
and  most  cordial  wishes. 

My  august  master  charges   me   to  advise  your  Excellency  that  His 
Majesty  appreciates  the  telegram  which  you  have  addressed  to  him. 

(Signed)  Count  Mouravieff. 
{Applause.) 

The  Secretary  General  apprises  the  Conference  of  an  invitation  from  the 
Government  of  the  Netherlands  to  an  artistic  celebration  to  take  place  June  17. 

The  President  states  that  at  the  time  of  inaugurating  the  work  of  the 
Conference,  he  deems  it  useful  to  sum  up  its  design  and  general  purposes,  and 
he  expresses  himself  in  these  terms : 

To  seek  the  most  efficacious  means  of  assuring  to  all  peoples  the  blessings  of 
a  real  and  lasting  peace,  such,  in  the  words  of  the  circular  of  August  12,  is  the 
chief  aim  of  our  deliberations. 

The  name  "  Peace  Conference,"  which  the  popular  mind,  outstripping  a 
decision  by  the  Governments  in  this  respect,  has  given  to  our  meeting,  well 
indicates  the  essential  object  of  our  labors.  The  Peace  Conference  cannot 
fail  in  the  mission  incumbent  upon  it;  its  deliberations  must  lead  to  a  tangible 
result  which  the  whole  human  race  confidently  expects. 

The  eagerness  with  which  every  Power  accepted  the  proposal  contained  in 

17 


18  PLENARY  CONFERENCE 

the  Russian  circulars  is  the  most  eloquent  witness  to  the  favor  which  peaceful 
ideas  have  found  in  the  eyes  of  all.  It  is  therefore  my  pleasant  duty  to  request 
the  delegates  of  all  the  States  here  represented  to  transmit  to  their  respective 
Governments  the  repeated  expression  of  the  Russian  Government's  thanks. 

The  very  membership  of  this  assembly  is  a  sure  guaranty  of  the  spirit  in 
[13]  which  we  shall  approach  the  task  entrusted  to  us.  The  Governments  are 
represented  here  by  statesmen  who  have  taken  active  part  in  shaping  the 
destinies  of  their  countries;  by  eminent  diplomats  who  have  handled  the  most 
important  matters  and  who  all  know  that  the  first  need  of  nations  is  the  main- 
tenance of  peace.  Beside  them  are  scholars  who  enjoy  a  well-deserved  renown 
in  the  field  of  international  law.  The  general  and  higher  officers  of  the  army 
and  navy  who  will  assist  us  in  our  labors  will  give  us  the  benefit  of  their  great 
technical  knowledge. 

The  mission  of  diplomacy,  as  we  all  know,  is  to  prevent  and  to  smooth  over 
disputes  between  States ;  to  moderate  rivalries ;  to  conciliate  divergent  interests ; 
to  remove  misunderstandings  and  to  substitute  good  understanding  for  disagree- 
ment. 

Let  me  say  that,  following  a  general  law,  diplomacy  is  no  longer  merely  an 
art  in  which  personal  ability  plays  an  exclusive  part;  its  tendency  is  to  become 
a  science  which  shall  have  fixed  rules  for  settling  international  disputes.  Such 
at  the  present  time  is  the  ideal  which  it  should  have  before  its  eyes,  and  it  cannot 
be  disputed  that  great  progress  will  have  been  made  if  diplomacy  succeeds  in 
establishing  in  this  Conference  some  of  the  rules  of  which  I  have  just  spoken. 
Accordingly,  we  shall  devote  ourselves  especially  to  the  generalization  and  codi- 
fication of  arbitral  practice,  and  of  mediation  or  good  offices.  These  ideas  are, 
so  to  speak,  the  very  essence  of  our  task,  the  general  goal  toward  which  we  are 
to  direct  our  efforts :  the  prevention  of  conflicts  by  peaceful  means.  It  is  not  for 
us  to  enter  into  the  domain  of  Utopia.  In  the  work  which  we  are  about  to  under- 
take we  must  consider  what  is  possible;  we  must  not  devote  ourselves  to  the 
pursuit  of  abstractions.  Without  sacrificing  any  of  our  further  hopes,  we  must 
remain  in  the  land  of  reality,  sound  its  very  depths,  so  as  to  lay  solid  foundations 
and  build  on  a  practical  basis. 

Now,  what  does  reality  show  us?  We  perceive  that  there  is  a  community 
of  material  and  moral  interests  between  nations,  which  is  constantly  increasing. 
The  ties  which  bind  the  various  branches  of  the  great  human  family  are  ever 
drawing  them  closer  to  each  other.  If  a  nation  wished  to  remain  isolated,  it 
could  not.  It  is  one  of  the  gear-wheels  of  a  living  mechanism,  fruitful  in  blessings 
for  all.  It  is  part  of  a  single  organism.  Rivalries  doubtless  exist;  but  do  they 
not  seem  to  be  rather  in  the  economic  field,  in  the  field  of  great  commercial 
expansion,  arising  from  the  same  need  to  spread  abroad  the  surplus  energy  which 
cannot  find  sufficient  employment  in  the  mother  country?  Rivalry  in  this  sense 
can  indeed  do  good,  provided  the  ideal  of  justice  and  the  lofty  sentiment  of  the 
great  brotherhood  of  man  soar  above  it. 

If,  therefore,  nations  are  bound  together  by  so  many  ties,  would  it  not  be 
well  to  see  what  all  this  means?  When  a  dispute  arises  between  two  or  more 
nations,  the  others,  without  being  directly  involved,  are  seriously  affected.  The 
eflFects  of  an  international  conflict  in  any  quarter  of  the  globe  echo  far  and  wide 
in  every  direction.  That  is  why  third  parties  cannot  remain  indiflferent  to  such 
a  conflict.     They  must  bring  their  powers  of  conciliation  into  play  to  stop  it. 


SECOND  MEETING,  MAY  20,  1899  19 

These  truths  are  not  new.  At  all  times  there  have  been  thinkers  to  suggest 
them,  statesmen  to  apply  them;  but  they  claim  our  attention  more  than  ever 
at  the  present  time,  and  the  fact  that  they  have  been  proclaimed  by  an  assembly 
such  as  ours  will  mark  an  important  date  in  the  history  of  mankind. 

Peace  is  the  crying  need  of  the  nations,  and  we  owe  it  to  mankind,  we  owe 
it  to  the  Governments  which  have  entrusted  us  with  their  powers  and  in  whose 
care  is  the  welfare  of  their  people,  we  owe  it  to  ourselves  to  do  a  useful 
work  by  specifying  the  method  of  employing  some  of  the  means  of  assuring 
peace. 

Arbitration  and  mediation  must  be  included  among  these  means.  Diplomacy 
long  ago  admitted  them  in  its  practice,  but  diplomacy  has  not  laid  down  definite 
rules  for  applying  them;  it  has  not  specified  the  cases  to  which  they  may  be 
applied.  That  is  the  noble  work  upon  which  we  are  about  to  direct  our  energies, 
sustained  by  the  conviction  that  we  are  laboring  for  the  good  of  all  mankind 
along  the  road  which  former  generations  have  laid  out  for  us. 

But  inasmuch  as  we  are  firmly  resolved  to  keep  away  from  wild  schemes, 
inasmuch  as  we  recognize  that  our  present  task,  great  as  it  is,  has  its  limitations, 
we  must  also  consider  another  side  of  the  question. 

If  the  possibility  of  armed  conflict  between  nations  cannot  be  absolutely 
eliminated,  it  would  still  be  a  labor  in  behalf  of  humanity  to  mitigate  the  horrors 
of  war.  The  Governments  of  civilized  States  have  already  made  international 
agreements  which  have  marked  important  stages.  It  is  our  task  to  mark  new 
stages,  and  in  this  category  of  questions  the  cooperation  of  the  many  competent 
men  who  are  present  at  this  meeting  cannot  but  be  most  valuable. 

There  are,  moreover,  certain  matters,  very  far-reaching  and  very  difficult 
[14]  to  handle,  which  likewise  pertain  to  the  maintenance  of  peace,  and  which, 
in  the  opinion  of  the  Imperial  Russian  Government,  might  come  within 
the  scope  of  the  Conference's  investigations.  It  might  be  well  to  investigate 
whether  a  limitation  of  increasing  armaments  is  not  required  for  the  well-being  of 
nations.  In  this  matter,  it  is  for  the  Governments  to  weigh  in  their  wisdom  the 
interests  which  they  have  in  charge. 

Such,  gentlemen,  are  the  essential  ideas  which,  it  would  appear,  should  guide 
us  in  our  deliberations. 

We  shall,  I  am  sure,  examine  them  in  a  spirit  at  once  high-minded  and  sin- 
cerely conciliatory,  so  as  to  proceed  along  the  road  which  leads  to  more  enduring 
peace.  We  shall  thus  perform  a  useful  work  for  which  future  generations  will 
thank  the  sovereigns  and  heads  of  States  represented  in  this  hall. 

One  of  our  tasks,  gentlemen,  should  be,  in  order  to  assure  the  progress  of 
our  work,  to  proceed  to  a  division  of  the  labor,  a  distribution  of  the  burden. 

I  venture,  therefore,  to  submit  the  following  plan  for  your  approval : 

Three  Commissions  shall  be  constituted : 

The  First  Com.mission  shall  taKe  charge  of  Articles  1,  2,  3,  and  4  of  the 
circular  of  December  30,  1898. 

The  Second  Commission  shall  take  charge  of  Articles  5,  6,  and  7  of  the 
said  circular. 

The  Third  Commission  shall  take  charge  of  Article  8  of  the  same  circular. 

Each  Commission  may  be  subdivided  into  subcommissions. 

It  is  understood  that  the  Conference  does  not  consider  itself  authorized  to 
investigate  any  question  other  than  those  mentioned  above.    In  case  of  doubt,  the 


20  PLENARY  CONFERENCE 

Conference  shall  decide  whether  or  not  such  and  such  a  proposition  brought  up 
in  the  Commissions  comes  within  the  scope  of  these  questions. 

Each  State  shall  have  the  right  to  be  represented  in  each  of  the  Commissions. 

The  first  delegates  shall  designate  the  members  of  the  respective  delegations 
who  are  to  be  members  of  each  Commission.  These  members  may  serve  on  two 
or  more  Commissions. 

As  is  the  rule  in  plenary  meetings,  each  State  shall  have  only  one  vote  in  each 
Commission. 

The  delegates  representing  the  Governments  may  take  part  in  all  of  the 
meetings  of  the  Commissions. 

Technical  and  scientific  delegates  may  attend  the  plenary  meetings  of  the 
Conference. 

The  Commissions  shall  constitute  their  own  bureaus  and  shall  regulate  the 
order  of  their  labors. 

The  proposal  of  the  President  is  adopted. 

The  President  asks  the  heads  of  the  delegations  kindly  to  communicate 
to  the  bureau  the  names  of  the  delegates  who  will  be  nominated  to  take  part 
in  the  different  commissions. 

He  then  asks  those  of  his  colleagues  who  have  not  already  done  so,  kindly 
to  remit  their  full  powers  to  the  bureau  of  the  Conference.  As  to  those  who 
are  not  yet  in  possession  of  their  full  powers,  he  asks  them  kindly  to  remit 
them  to  the  bureau  as  they  are  received. 

The  President  :  We  are  bound  to  keep  secret  our  deliberations  in  the  plenary 
meetings  as  well  as  in  the  meetings  of  the  Commissions.  Without  breaking  this 
very  important  rule,  it  is  well,  as  far  as  possible,  to  take  into  account  the  legiti- 
mate curiosity  of  the  public  as  to  our  work,  and  I  ask  you  kindly  to  authorize 
the  bureau,  under  the  superintendence  of  your  president,  to  organize  a  press 
bureau.     (Assent.) 

The  minutes  of  the  opening  meeting  are  adopted. 

The  President  announces  that  the  members  of  the  Conference  will  be 
advised  by  the  secretariat  of  the  date  and  hour  of  the  next  meeting. 

The  meeting  adjourns  at  11 :  45  o'clock. 


[15] 


THIRD  MEETING 

MAY  23,   1899 


His  Excellency  Mr.  Staal  presiding. 

The  meeting  opens  at  noon. 

The  minutes  of  the  second  meeting  are  adopted. 

The  President  invites  Mr.  van  Karnebeek  to  submit  to  the  Conference 
a  plan  for  the  organization  of  the  commissions  and  the  distribution  of  the 
work. 

Jonkheer  van  Kcirnebeek  reads  the  following  proposals : 

The  bureau  of  each  commission  will  contain  honorary  presidents,  a  president, 
an  assistant  president  and  several  vice  presidents. 

The  presidents  and  assistant  presidents  will  divide  between  themselves  the 
presidency  of  the  subcommissions. 

In  virtue  of  these  provisions,  Jonkheer  van  Karnebeek  proposes  to  constitute 
the  bureaus  in  the  following  manner : 

FIRST  COMMISSION 


His  Excellency  Count  Munster, 
His  Excellency  Mr.  White. 
His  Excellency  Mr.  Beernaert, 
Mr.  VAN  Karnebeek, 
Abdullah  Pasha, 
Sir  John  Ardagh, 
General  Mounier, 
Sir  John  Fisher, 
Admiral  Pephau, 
Captain  Siegel. 


I  Honorary  presidents. 

President. 
Assistant  president. 

Vice  presidents  of  the  first 
subcommission. 

^Vice  presidents  of  the  second 
subcommission. 


SECOND  COMMISSION 

His  Excellency  Duque  de  Tetuan,         ] 

His  Excellency  Turkhan  Pasha,  )■  Honorary  presidents. 

His  Excellency  Count  Welsersheimb,  J 

Mr.  Martens,  President. 

Mr.  AssER, 

Mr.  Roth, 
General  Thaulow, 
Baron  von  Stengel, 
General  Zuccari. 


21 


Assistant  president. 
"\  Vice  presidents  of  the  first 
J      subcommission. 
"1  Vice  presidents  of  the  second 
J      subcommission. 


22 


PLENARY  CONFERENCE 


THIRD  COMMISSION 


His  Excellency  Count  Nigra,  ] 

His  Excellency  Sir  Julian  Pauncefote,  |  ^°"°^^^  presidents. 

Mr.  Leon  Bourgeois, 

Mr.  BiLLE, 

Baron  d'Estournelles  de  Constant, 

Count  de  Macedo, 

Mr.  Merey  von  Kapos-Mere, 

Mr.  PoMPiLj, 

Dr.  ZoRN. 


President. 


Vice  presidents. 


These  proposals  are  adopted. 

Jonkheer  van  Karnebeek  suggests  to  the  Conference  the  adoption  of  the 
following  schedule  for  the  work  of  the  Commissions: 


[16] 


Monday 

Monday 

Tuesday 

Wednesday 

Wednesday 

Thursday 

Friday 

Friday 

Saturday 


10  o'clock 

2  o'clock 

10  o'clock 

10  o'clock 

2  o'clock 

10  o'clock 

10  o'clock 

2  o'clock 

10  o'clock 


First  Commission. 
Third  Commission. 
Second  Commission. 
First  Commission. 
Third  Commission. 
Second  Commission. 
First  Commission. 
Third  Commission. 
Second  Commission. 


For  the  current  week,  the  Second  Commission  will  meet  next  Thursday  at 
10  o'clock,  the  First,  Friday  at  10  o'clock  in  the  morning,  the  Third,  Friday  at 
2  o'clock  and  the  Second,  Saturday  at  10  o'clock. 

Mr,  Raffalovich  desires  to  know  the  intentions  of  the  Conference  concerning 
the  minutes  of  the  meetings  of  the  Commissions.  He  suggests  the  adoption  of 
the  system  of  analytical  notes  to  be  taken  by  the  secretaries  and  read  at  the  next 
meeting.  These  notes  are  useful  when  it  is  necessary  to  present  a  report  on  the 
work  of  the  Commissions  in  a  plenary  meeting.  They  should  not  be  printed,  but 
placed  at  the  disposal  of  the  members  who  should  wish  to  consult  them. 

Their  reading  at  the  beginning  of  the  meeting  would  permit  the  verification 
of  the  minutes  of  the  preceding  meeting.  The  motions  or  proposals  formulated 
in  the  Commissions  should  always  be  copied  and  distributed  to  the  members. 

After  an  exchange  of  opinion  on  this  subject  between  Baron  Bildt  and  Mr. 
Beldiman,  the  Conference,  at  the  suggestion  of  Mr.  Martens,  decides  that  the 
Commissions  themselves  will  regulate  the  procedure  of  the  minutes  of  their 
meetings. 

The  President  informs  the  Conference  that  numerous  communications  have 
been  received  by  the  Bureau,  and  he  proposes  to  hand  them  over  for  inspection 
by  a  special  Commission  presided  over  by  Mr.  van  Karnebeek.     (Adopted.) 

The  President  states  to  the  Conference  that  the  table  of  the  distribution 
of  the  members  of  the  different  Commissions  will  be  printed  and  annexed  to  the 
minutes  of  the  next  meeting. 

The  meeting  adjourns  at  1  o'clock. 


THIRD  MEETING,  MAY  23,  1899:  ANNEX  23 

Annex  to  the  Minutes  of  the  Third  Meeting,  May  23 

FIRST  COMMISSION 

Monday,  Wednesday  and  Friday,  10  o'clock 

His  Excellency  Count  Munster^   1  -t  -j     ^ 

His  Excellency  Mr.  White,         jHonorary  presidents. 

His  Excellency  Mr.  Beernaert,      President.  -    -- 

Jonkheer  van  Karnebeek,  Assistant  president. 

Abdullah  Pasha, 

General  Mounier,  i-^'^lP'^,'l^f"?„''^  *^^  ^"'^ 

Sir  John  Ardagh, 

Captain  Siegel, 

Admiral  Pephau, 

Sir  John  Fisher. 


subcommission. 

Vice  presidents  of  the  second 
subcommission. 


MEMBERS 

For  Germany:  Baron  von   Stengel,  Colonel  Gross  von  Schwarzhoff, 
Captain  Siegel. 

For  the  United  States  of  America:  His  Excellency  Mr.  White,  Captain 
Mahan,  Captain  Crozier. 

For  Austria-Hungary:  Lieutenant  Colonel  Khuepach  zu  Reid,  Zimmer- 
lehen  und  Haslburg,  Captain  of  Corvette  Count  Soltyk. 

For  Belgium:  His  Excellency  Mr.  Beernaert,  Count  de  Grelle  Rogier. 

For  China:  His  Excellency  Mr.  Yang  Yu. 
For  Denmark:  Mr.  Bille,  Colonel  von  Schnack. 
[17]  For  Spain:  Colonel  Count  de  Serrallo. 

For  France :  Mr.  Bihourd,  General  Mounier,  Admiral  Pephau. 

For  Great  Britain:  Sir  John  Fisher,  Sir  J.  Ardagh,  Lieutenant  Colonel 
C.  A  Court. 

For  Greece : 

For  Italy :  General  Chevalier  Zuccari,  Captain  Chevalier  Bianco. 

For  Luxemburg : 

For  Mexico:  Mr.  Zenil. 

For  the  Netherlands :  General  den  Beer  Poortugael,  Captain  Tadema. 

For  Persia:  General  Mirza  Riza  Khan,  Arfa-ud-Dovleh. 

For  Portugal :  Captain  A.  d'Ornellas,  Captain  A.  de  Castilho. 

For  Roumania:  Mr.  Beldiman,  Colonel  Coanda. 

For  Russia:  Mr.  Basily,  Colonel  Gilinsky,  Colonel  Count  Barantzew, 
Commander  Scheine,  Mr.  Ovtchinnikow,  Naval  Lieutenant,  Mr.  Raffalo- 

VICH. 

For  Serbia :  Colonel  Maschine. 
For  Siam :  Mr.  Corragioni  d'Orelli,  Mr.  E.  Rolin. 

For  Sweden  and  Norway:  Colonel  Brandstrom,  Commander  de  Hjul- 
hammar. 


24  PLENARY  CONFERENCE 

For  Switzerland:  Colonel  Kunzli. 

For  Turkey:  General  Abdullah  Pasha,  Admiral  Mehemed  Pasha. 

For  Bulgaria:  Major  Hessaptchieff. 


SECOND  COMMISSION 
Tuesday,  Thursday  and  Saturday,  10  o'clock 


Honorary  presidents. 


His  Excellency  Duque  de  Tetuan, 

His  Excellency  Turkhan  Pasha, 

His  Excellency  Count  Welsersheimb,  ^ 

Mr.  Martens,  President. 

Mr.  AssER,  Assistant  president. 

Mr.  Roth,  1  Vice  presidents  of  the  first 

General  Thaulow,  J      subcommission. 

Baron  von  Stengel,  1  Vice  presidents  of  the  second 

General  Zuccari.  j     subcommission. 

MEMBERS 

For  Germany :  Baron  von  Stengel,  Dr.  Zorn,  Colonel  Gross  von  Schwarz- 
hoff.  Captain  Siegel. 

For  the  United  States  of  America :  His  Excellency  Mr.  White,  Mr.  Stan- 
ford Newel,  Captain  Mahan,  Captain  Crozier. 

For  Austria-Hungary:  Mr.  Lammasch,  Lieutenant  Colonel  Khuepach  zir 
Reid,  Zimmerlehen  und  Haslburg,  Captain  of  Corvette  Count  Soltyk. 

For  Belgium:  His  Excellency  Mr.  Beernaert,  Count  de  Grelle  Rogier, 
Chevalier  Descamps. 

For  China:  His  Excellency  Mr.  Yang  Yu,  Mr.  Hoo  Wei-teh,  Mr.  Lou 

TSENG-TSIANG. 

For  Denmark:  Colonel  von  Schnack,  Mr.  Bille. 

For  Spain :  Mr.  de  Villa  Urrutia,  Mr,  de  Baguer. 

For  France :  General  Mounier,  Admiral  Pephau,  Mr.  Renault. 

For  Great  Britain :  Sir  John  Fisher,  Sir  J.  Ardagh,  Lieutenant  Colonel  C. 
A  Court. 

For  Greece : 

For  Italy:  Count  Zannini,  Mr.  Pompilj,  General  Chevalier  Zuccari,  Captain 
Chevalier  Bianco. 

For  Japan :  Mr.  Motono,  Colonel  Uehara,  Captain  Sakamoto,  Mr.  Ariga. 

For  Luxemburg :  His  Excellency  Mr.  Eyschen,  Count  de  Villers. 

For  Mexico :  Mr.  de  Mier,  Mr,  Zenil, 

For  the  Netherlands:  Mr.  Asser,  General  den  Beer  Poortugael,  Captain 
Tadema. 

For  Persia :  General  Mirza  Riza  Khan,  Arfa-ud-Dovleh. 

For  Portugal :  Count  de  Selir,  Captain  A,  de  Castilho. 

For  Roumania :  Mr.  Beldiman,  Mr.  Papiniu,  Colonel  Coanda. 

For  Russia:  Mr.  Martens,  Colonel  Gilinsky,  Colonel  Count  Barantzew, 
Commander  Scheine,  Naval  Lieutenant  Ovtchinnikow. 


THIRD  MEETING,  MAY  23,  1899:  ANNEX  25 

For  Serbia:  Mr.  Miyatovitch,  Dr.  Veljkovitch. 
For  Siam:  Mr.  Corragioni  d'Orelli,  Mr.  E.  Rolin, 
For  Sweden  and  Norway:  General  Thaulow,  Colonel  Brandstrom, 
For  Switzerland :  Dr.  Roth,  Mr.  Odier. 
[18]   For  Turkey:  Noury  Bey,  General  Abdullah  Pasha,  Admiral  Mehemed 
Pasha. 
For  Bulgaria :  Dr.  Stancioff. 

THIRD  COMMISSION 

Monday,  Wednesday  and  Friday,  2  o'clock 

His  Excellency  Count  Nigra,  "1  t^  -j     ^ 

c-     T  1^  V Honorary  presidents. 

His  Excellency  Sir  Julian  Pauncefote,  J 

Mr.  Leon  Bourgeois,  President. 

Mr.  BiLLE, 

Baron  d'Estournelles  de  Constant, 

Count  DE  Macedo, 

Mr.  Merey  von  Kapos-Mere, 

Mr.  Pompilj, 

Dr.  ZoRN. 


Vice  presidents. 


MEMBERS 

For  Germany :  Dr.  Zorn,  Colonel  Gross  von  Schwarzhoff,  Captain  Siegel. 

For  the  United  States  of  America :  His  Excellency  Mr.  White,  Honorable 
Seth  Low,  Mr.  Holls. 

For  Austria-Hungary:  His  Excellency  Count  von  Welsersheimb,  Mr. 
Okolicsanyi  von  Okolicsna,  Mr.  Merey  von  Kapos-Mere. 

For  Belgium :  Count  de  Grelle  Rogier,  Chevalier  Descamps. 

For  China:  His  Excellency  Mr.  Yang  Yu,  Mr.  Hoo  Wei-teh,  Mr.  Lou 
Tseng-tsiang. 

For  Denmark :  Mr.  Bille. 

For  Spain :  His  Excellency  Duque  de  Tetuan,  Mr.  Villa  Urrutia. 

For  France:  Mr.  Bourgeois,  Baron  d'Estournelles  de  Constant,  Mr. 
Renault. 

For  Great  Britain:  His  Excellency  Sir  Julian  Pauncefote,  Sir  Henry 
Howard. 

For  Greece:  Mr.  Delyanni. 

For  Italy:  His  Excellency  Count  Nigra,  Count  Zannini,  Mr.  Pompilj. 

For  Japan :  Baron  Hayashi,  Mr.  Motono,  Mr.  Ariga. 

For  Luxemburg :  His  Excellency  Mr.  Eyschen,  Count  de  Villers. 

For  Mexico:  Mr.  de  Mier,  Mr.  Zenil. 

For  the  Netherlands :  Jonkheer  van  Karnebeek,  Mr.  Asser,  Mr.  Rahusen. 

For  Persia:  General  Mirza  Riza  Khan,  Arfa-ud-Dovleh. 

For  Portugal :  Mr.  d'Ornellas  de  Vasconcellos. 

For  Roumania :  Mr.  Beldiman,  Mr.  Papiniu. 

For  Russia:  His  Excellency  Mr.  Staal,  Mr.  Martens,  Mr.  Basily,  Mr. 
Raffalovich. 


26  PLENARY  CONFERENCE 

For  Serbia:  Mr.  Miyatovitch,  Dr.  Veljkovitch. 

For  Siam:  Mr.  Phya  Suriya,  Mr,  Corragioni  d'Orelli,  Mr.  Rolin. 

For  Sweden  and  Norway :  Baron  Bildt,  Mr.  Konow. 

For  Switzerland :  Dr.  Roth,  Colonel  Kunzli,  Mr.  Odier. 

For  Turkey :  His  Excellency  Turkhan  Pasha,  Noury  Bey. 

For  Bulgaria :  Dr.  Stancioff. 


FOURTH  MEETING 

JUNE  20,  1899 


Mr.  Staal  presiding.  .    -- 

The  meeting  opens  at  4  o'clock. 

The  minutes  of  the  meeting  of  May  23  are  adopted. 

The  President  states  that  the  first  business  on  the  agenda  is  the  examination 

of  the  report  of  the  Second  Commission  upon  a  series  of  provisions  having 

[19]   for  object  an  adaptation  to  maritime  warfare   of   the  principles   of   the 

Geneva  Convention,  and  the  vote  on  the  articles  proposed  to  the  Conference 

by  the  Commission. 

Count  de  Macedo  declares  that  he  does  not  wish  to  go  so  far  as  to 
ask  the  postponement  of  the  first  part  of  the  business  on  the  agenda,  but  he 
remarks  that  the  vote  on  the  ten  articles  presented  cannot  be  final  inasmuch 
as  they  have  been  referred  by  the  Second  Commission  to  the  subcommission. 

Mr.  Martens  states  that  the  Commission  has  finally  adopted  the  ten  articles 
submitted  to  it.  What  has  been  referred  to  the  committee  of  examination  of 
the  first  subcommission  are  the  additional  proposals  presented  by  Captain  Mahan. 

Count  de  Macedo  replies  that  in  his  opinion,  it  might  happen  that  the 
resolutions  taken  would  again  modify  the  text  of  the  articles  adopted  and  that, 
in  this  case,  the  Conference  would  have  to  recommence  its  examination. 

He  adds  that,  whatever  may  be  the  decision  reached,  he  believes  it  incumbent 
upon  him  to  renew  the  declaration  he  has  made  in  the  meeting  of  the  Second 
Commission,  which  is  couched  in  these  terms : 

Count  DE  Macedo,  first  delegate  of  Portugal,  declares,  requesting 
the  Second  Commission  to  record  this  declaration  and  consider  it  as  a  general 
reservation  to  the  ten  articles  just  read  and  discussed,  that  the  instructions 
of  his  Government  being  naturally  limited  to  the  question  of  adhesion  to  the 
general  principles  contained  in  the  Mouravieff  circular  and  to  the  acceptance 
under  an  equally  general  form  of  the  application  of  these  principles,  his 
favorable,  though  silent,  vote  on  the  doctrine  of  the  aforesaid  articles  has 
no  final  character  even  within  the  limits  that  his  powers  permit  him  to  vote 
(that  is  ad  referendum)  ;  and  that  this  character  cannot  be  obtained  until  he 
receives,  from  the  Government  of  His  Most  Faithful  Majesty,  instructions 
given  with  a  full  knowledge  of  the  text  just  voted  upon. 

The  President  records  the  declaration  of  the  Count  de  Macedo. 

The  President  :  I  am  certainly  assured  of  unanimous  adhesion  in  congratu- 
lating the  Second  Commission  on  havinsf  been  the  first  to  bring  us  a  tangible 
result  of  common  good- will.  As  Mr.  Renault  so  well  expresses  it  in  his  remark- 
able report,  we  have  before  us  "a  project  which  will  reconcile  the  interests 

27 


28  PLENARY  CONFERENCE 

involved,  and  will  satisfy  the  hope,  expressed  for  so  long  a  time,  that  maritime 
warfare  should  no  longer  be  deprived  of  the  humanitarian  and  charitable  element 
which  the  Geneva  Convention  has  added  to  war  on  land."  I  must  ask  you  to 
address  our  thanks  especially  to  Mr.  Asser  who  has  so  competently  presided  over 
the  deliberations  of  the  subcommission.  Mr.  Renault,  who  has  been  kind 
enough  to  take  charge  of  the  report  and  who  has  also  given  us  the  lasting  and 
systematic  commentary  on  the  text,  is  entitled  to  our  full  gratitude. 

Mr.  Asser  considers  that  it  will  suffice  to  read  the  text  of  the  articles  voted 
in  the  Commission  in  order  that  the  Conference  be  enabled  to  reach  a  decision 
regarding  them.  Referring  to  the  observation  made  by  the  Count  de  Macedo, 
Mr.  Asser  explains  that,  although  the  Commission  voted  that  the  three  additional 
articles  presented  by  Captain  Mahan  be  referred  to  the  drafting  committee,  it 
intended  to  maintain  in  full  the  text  of  the  ten  articles  submitted  to  the  approval 
of  the  Conference.  It  is  possible,  though  not  probable,  that  this  reference  will 
involve  certain  modifications  in  the  text  of  these  articles. 

In  this  case  the  new  text  would  be  submitted  to  the  Conference  in  a  subse- 
quent meeting.  But  it  would  be  regrettable  if  the  plenary  assembly  were  to 
separate  to-day  without  ratifying  the  proposals  of  the  Second  Commission. 

Mr.  Asser  then  reads  the  ten  articles  as  the  Second  Commission  has  adopted 
them: 

Article  1 

Military  hospital  ships,  that  is  to  say,  ships  constructed  or  assigned  by  States  specially 
and  solely  with  a  view  to  assist  the  wounded,  sick  and  shipwrecked,  the  names  of  which 
have  been  communicated  to  the  belligerent  Powers  at  the  commencement  or  during  the 
course  of  hostilities,  and  in  any  case  before  they  are  employed,  shall  be  respected  and  cannot 
be  captured  while  hostilities  last. 

These  ships,  moreover,  are  not  on  the  same  footing  as  men-oi-war  as  regards  their 
stay  in  a  neutral  port. 

Article  2 

Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  individuals  or 
officially  recognized  relief  societies,  shall  likewise  be  respected  and  exempt  from  capture,  if 
the  belligerent  Power  to  which  they  belong  has  given  them  an  official  commission  and 
has  notified  their  names  to  the  hostile  Power  at  the  commencement  of  or  during  hostilities, 
and  in  any  case  before  they  are  employed. 

These  ships  shall  be  provided  with  a  certificate  from  the  competent  authorities,  declaring 
that  they  had  been  under  their  control  while  fitting  out  and  on  final  departure. 

Article  3 

Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  individuals  or 
officially   recognized    societies   of  neutral   countries,   shall   be    respected    and    exempt 
[20]    from  capture,  if  the  neutral  Power  to  which  they  belong  has  given  them  an  official 
commission  and  has  notified  their  names  to  the  belligerent  Powers  at  the  commence- 
ment of  or  during  hostilities,  and  in  any  case  before  they  are  employed. 

Article  4 

The  ships  mentioned  in  Articles  1,  2,  and  3  shall  afford  relief  and  assistance  to  the 
wounded,  sick  and  shipwrecked  of  the  belligerents  without  distinction  of  nationality. 
The  Governments  undertake  not  to  use  these  ships  for  any  military  purpose. 
These  ships  must  in  nowise  hamper  the  movements  of  the  combatants. 


FOURTH  MEETING,  JUNE  20,  1899  29 

During  and  after  an  engagement  they  will  act  at  their  own  risk  and  peril. 

The  belligerents  will  have  the  right  to  Control  and  search  them;  they  can  refuse  to 
help  them,  order  them  off,  make  them  take  a  certain  course,  and  put  a  commissioner  on 
board ;  they  can  even  detain  them,  if  important  circumstances  require  it. 

As  far  as  possible  the  belligerents  shall  enter  in  the  log  of  the  hospital  ships  the  orders 
which  they  give  them. 

Article  5 

Military  hospital  ships  shall  be  distinguished  by  being  painted  white  outside  with  a 
horizontal  band  of  green  about  a  metre  and  a  half  in  breadth. 

The  ships  mentioned  in  Articles  2  and  3  shall  be  distinguished  by  being  painted  white 
outside  with  a  horizontal  band  of  red  about  a  metre  and  a  half  in  breadth. 

The  boats  of  the  ships  above-mentioned,  as  also  small  craft  which  may  be  used  for 
hospital  work,  shall  be  distinguished  by  similar  painting. 

All  hospital  ships  shall  make  themselves  known  by  hoisting,  with  their  national  flag, 
the  white  flag  with  a  red  cross  provided  by  the  Geneva  Convention. 

Article  6 

Neutral  merchantmen,  yachts,  or  vessels,  having,  or  taking  on  board,  sick,  wounded, 
or  shipwrecked  of  the  belligerents,  cannot  be  captured  for  so  doing,  but  they  are  liable  to 
capture  for  any  violation  of  neutrality  they  may  have  committed. 

Article  7 

The  religious,  medical,  and  hospital  staff  of  any  captured  ship  is  inviolable,  and  its 
members  cannot  be  made  prisoners  of  war.  On  leaving  the  ship  they  take  with  them  the 
objects  and  surgical  instruments  which  are  their  own  private  property. 

This  staff  shall  continue  to  discharge  its  duties  while  necessary,  and  can  afterwards 
leave  when  the  commander  in  chief  considers  it  possible. 

The  belligerents  must  guarantee  to  the  said  staff  when  it  has  fallen  into  their  hands 
the  enjoyment  of  their  salaries  intact. 

Article  8 

Sailors  and  soldiers  on  board  when  sick  or  wounded,  to  whatever  nation  they  belong, 
shall  be  protected  and  tended  by  the  captors. 

Article  9 

The  shipwrecked,  wounded  or  sick  of  one  of  the  belligerents  who  fall  into  the  power 
of  the  other,  are  prisoners  of  war.  The  captor  must  decide,  according  to  circumstances, 
whether  to  keep  them,  send  them  to  a  port  of  his  own  country,  to  a  neutral  port,  or  even 
to  the  enemy  port.  In  this  last  case,  prisoners  thus  repatriated  cannot  serve  again  while 
the  war  lasts. 

Article  10 

The  shipwrecked,  wounded,  or  sick,  who  are  landed  at  a  neutral  port,  with  the  consent 
of  the  local  authorities,  must,  unless  an  arrangement  is  made  to  the  contrary  between  the 
neutral  State  and  the  belligerent  States,  be  guarded  by  the  neutral  State  so  as  to  prevent 
their  again  taking  part  in  the  operations  of  the  war. 

The  expenses  of  tending  them  in  hospital  and  interning  them  shall  be  borne  by  the 
State  to  which  the  shipwrecked,  sick  or  wounded  belong. 

Count  de  Grelle  Rog:ier  asks  if  it  would  not  be  preferable  to  say  in 
Article  10.  paragraph  2 :  "  the  expenses  of  tending  them  in  hospital  and,  the  case 
arising,  of  interning  them  shall  be  borne,  etc.,  etc." 


30  PLENARY  CONFERENCE 

Mr.  Renault,  reporter,  opposes  this  amendment  and  requests  the  Conference 
to  maintain  Article  10. 

The  President  consults  the  Conference  on  the  adoption  of  the  ten  articles 
proposed. 

These  articles  are  adopted. 

The  delegate  of  Japan,  Mr.  Motono,  makes  the  following  declaration : 

In  the  meeting  of  May  30,  1899,  of  the  first  subcommission  of  the  Second 
Commission,  I  had  the  honor,  in  the  name  of  the  delegation  of  Japan,  to  call  the 
attention  of  the  subcommission  to  a  deficiency  which  seemed  to  us  to  exist  both 
in  the  provisions  of  the  Geneva  Convention  of  1864  and  in  the  additional  articles 
of  1868. 

The  wounded  and  the  sick  of  the  army  on  land  as  well  as  the  hospitals, 

ambulances  and  evacuations  are  protected  by  the  Geneva  Convention. 

[21]   The  additional  articles  of   1868  had  in  view  the  protection  in  a  certain 

measure  of  the  hospital  ships,  their  staff,  and  also  the  wounded,  sick  and 

shipwrecked  aboard  these  ships ;  but  the  general  purport  of  these  provisions  would 

seem  to  apply  only  to  the  victims  of  maritime  warfare. 

The  Imperial  Government  of  Japan  considers  it  necessary,  in  the  interest  of 
humanity,  to  extend  to  hospital  ships,  charged  with  the  transport  by  sea  of  the 
wounded  and  sick  of  the  army  on  land,  the  protection  accorded  by  the  Geneva 
Convention  to  military  hospitals,  ambulances  and  evacuations. 

It  is  with  this  end  in  view  that  I  have  had  the  honor,  in  accordance  with 
the  instructions  of  our  Government,  of  expressing,  in  the  meeting  of  May  30 
of  the  first  subcommission  of  the  Second  Commission,  the  desire  to  see  an 
adequate  provision  inserted  in  the  present  project. 

The  first  subcommission  of  the  Second  Commission  decided  in  the  same 
meeting  to  take  our  desire  into  account,  and  Mr.  Renault  in  his  remarkable 
report  presented  to  you  on  the  work  of  the  Second  Commission,  has  inserted  the 
general  purport  of  the  innovation  introduced  into  the  present  project  in  these 
terms : 

In  the  provisions  submitted  to  the  Conference  by  the  Commission,  we 
have  spoken  of  wounded,  sick,  and  shipwrecked,  not  of  victims  of  maritime 
warfare.  The  latter  expression,  although  generally  accurate,  would  not 
always  be  so,  and  therefore  should  not  appear.  The  rules  set  forth  are  to 
be  applied  from  the  moment  that  there  are  wounded  and  sick  on  board  sea- 
going vessels,  it  being  immaterial  where  the  wound  was  given  or  the  sickness 
contracted,  whether  on  land  or  at  sea.  Consequently,  if  a  vessel's  duty  is 
to  carry  by  sea  the  wounded  or  sick  of  land  forces,  this  vessel  and  these  sick 
and  wounded  come  under  the  provisions  of  our  project.  On  the  other  hand, 
it  is  clear  that  if  sick  or  wounded  soldiers  are  disembarked  and  placed  in 
an  ambulance  or  a  hospital,  the  Geneva  Convention  then  applies  to  them  in 
all  respects. 

As  this  observation  seems  to  us  to  respond  fully  to  the  remarks  made 
in  the  subcommission  on  this  point,  we  think  it  unnecessary  to  insert  any 
provision  dealing  especially  with  it. 

These  observations  in  the  report  of  the  Second  Commission  give  full  satis- 
faction to  the  desire  expressed  by  the  Imperial  Government  of  Japan. 

In  consequence,  and  to  avoid  all  misunderstanding  in  the  future  as  to  the 
interpretation  of  the  two  texts  of  the  present  project  relating  to  the  above- 


FOURTH  MEETING,  JUNE  20,  1899:  ANNEX  31 

mentioned  point,  I  have  the  honor  to  ask  you,  in  the  name  of  the  delegation  of 
Japan,  that  the  above-cited  passage  of  the  report  be  inserted  in  the  protocol  of 
the  Peace  Conference. 

The  President  records  the  declaration  of  Mr.  Motono  and  states  that  its 
examination  will  be  referred  to  the  committee  charged  with  the  drafting  of  the 
Final  Act. 

Mr.  Delyanni  makes  the  following  declaration: 

I  have  to-day  taken  part  in  the  examination  of  the  report  and  the  articles 
concerning  the  adaptation  of  the  principles  of  the  Geneva  Convention  to  maritime 
warfare,  but  I  cannot  sign  the  general  act  of  the  Conference  which  is  to  be  drawn 
up,  before  submitting  the  text  to  my  Government  and  receiving  authorization  to 
sign  it. 

The  Ottoman  delegation  makes  the  following  declaration: 

The  Ottoman  delegates  declare  that  they  cannot  affix  their  signatures  to 
the  general  act  of  the  Conference,  implying  approval  of  the  articles  voted  upon 
relating  to  the  adaptation  of  the  principles  of  the  Geneva  Convention  to  maritime 
warfare,  before  submitting  it  to  their  Government,  and  receiving  instructions 
therefrom. 

The  President  records  these  declarations. 

The  President  states  that  the  second  part  of  the  business  on  the  agenda  is 
the  appointment  of  the  committee  charged  with  giving  the  conventional  form  to 
the  decisions  of  the  Conference,  that  is  to  say,  drawing  up  the  necessary  documents 
in  accordance  with  the  established  formulas.  He  proposes  to  constitute  the 
committee  of  his  Excellency  Count  Nigra,  Messrs.  Asser,  Descamps,  Martens, 
Renault,  Baron  von  Stengel,  and  adds  Mr.  Raffalovich  to  represent  therein 
the  secretariat  general. 

This  selection  is  ratified  by  the  Conference. 

The  meeting  closes  at  4 :  30  o'clock. 


[22]  Annex  to  the  Minutes,  Fourth  Meeting,  June  20 

REPORT  TO  THE  CONFERENCE ^ 

The  Second  Commission  has  adopted,  on  the  report  of  a  drafting  committee,^ 
a  series  of  provisions  having  for  its  aim  the  adaptation  of  the  principles  of  the 
Convention  of  Geneva  to  maritime  warfare.    It  now  submits  these  provisions  to 

»  '  [The  Articles  (1-10)  quoted  in  this  report  were  approved  by  the  Conference  without 

change.  Pt.  i,  ante,  p.  28.  Several  variations  in  their  wording  in  the  report  are  seen,  by  a 
reference  to  the  proceedings  of  the  Second  Commission  and  the  first  subcommission  thereof 
(pt.  iii,  post,  pp.  387-90,  459  et  scq.),  to  be  typographical  or  clerical  errors;  and  the  proper 
corrections  therein  have  been  presumed  in  this  translation.] 

'  This  committee  consisted  of  Vice  Admiral  Fisher,  Captain  Scheine,  Captain  Siegel, 
and  Professor  Renault  as  reporter.  Lieutenant  Colonel  Charles  a  Court  and  Lieutenant 
OvTCHiNNiKOW  also  participated  in  the  work  of  this  committee  as  associate  members. 


32  PLENARY  CONFERENCE 

the  vote  of  the  Conference  and  accompanies  them  with  this  report,  which  is 
designed  to  explain  the  reasons  for  the  articles  proposed. 

To  the  Second  Commission  (first  subcommission)  was  assigned  the  duty  of 
examining  points  5  and  6  of  Count  Mouravieff's  circular.  It  has  been  assumed 
that  it  is  desirable  to  adapt  the  principles  of  the  Geneva  Convention  of  1864  to 
maritime  wars,  and  also  that  it  is  proper  to  take  the  additional  articles  of  1868  as 
a  basis.  The  latter  articles  gave  rise  to  criticism  very  soon  after  their  signature, 
and  have  been  for  thirty  years  the  subject  of  a  great  deal  of  study.  It  now  be- 
comes necessary  to  take  those  criticisms  into  account,  to  profit  by  the  discussions, 
and  to  decide  on  some  project  which  will  reconcile  the  interests  involved  and  will 
also  satisfy  the  hope  that  has  been  expressed  for  so  long  a  time  by  individuals 
and  societies  of  the  highest  eminence  that  maritime  warfare  should  no  longer  be 
deprived  of  the  humanitarian  and  charitable  element  which  the  Geneva  Conven- 
tion has  added  to  war  on  land.  We  think  that  the  preparatory  work  on  this 
project,  so  earnestly  desired  by  public  opinion,  is  now  sufficiently  done  and  that 
it  is  now  time  to  obtain  results.  We  hope  that  our  work  will  permit  the  Con- 
ference to  do  this  and,  with  a  complete  knowledge  of  the  matter,  to  take  action  by 
adopting  a  text  which  may  be  easily  transformed  into  an  international  convention. 

We  have  been  guided  by  the  following  general  ideas.  In  the  first  place,  we 
confined  ourselves  to  general  principles  only,  and  did  not  enter  into  details  of 
organization  and  regulation  which  are  for  each  State  to  settle  according  to  its  own 
interests  or  customs.  We  determine  what  the  legal  status  of  hospital  ships  should 
be  in  international  law ;  but  we  do  not  determine  what  shall  constitute  such  ships, 
nor  do  we  distinguish  Government  vessels  from  vessels  of  relief  societies,  nor  do 
we  say  whether  boats  belonging  to  private  individuals  may  be  attached  to  the 
hospital  service  during  a  war.  These  are  questions  that  must  be  handled  by  the 
several  Governments,  because  circumstances  are  so  different  that  a  uniform  solu- 
tion cannot  be  applied.  The  assistance  rendered  by  private  charity  will  be  greater 
or  less,  according  to  the  country.  Then  again,  we  must  not  be  so  preoccupied  with 
the  demands  of  humanity  that  we  are  oblivious  of  the  necessities  of  warfare; 
we  must  avoid  laying  down  rules  which,  even  though  inspired  by  sentiments  of 
humanity,  are  likely  to  be  disregarded  often  by  the  combatants  as  unduly  impeding 
their  freedom  of  action.  Humanity  gains  little  by  the  adoption  of  a  rule  that 
remains  a  dead  letter ;  and  the  feeling  of  respect  for  engagements  is  but  weakened. 
It  is  accordingly  indispensable  to  impose  only  such  obligations  as  can  be  fulfilled  in 
all  circumstances  and  to  leave  to  the  combatants  all  the  latitude  they  require. 
This,  it  is  to  be  hoped,  will  not  be  so  used  as  needlessly  to  hinder  relief  work. 

The  provisions  to  be  decided  on  fall  into  three  classes :  we  have  to  make  rules 
regarding  the  status,  first,  of  the  vessels  engaged  in  relief  work  (Articles  1  to  6)  ; 
secondly,  of  the  persons  so  engaged  (Article  7)  ;  and  thirdly,  of  the  wounded,  sick 
or  shipwrecked  (Articles  8  and  9). 

VESSELS 

There  may  be,  as  a  matter  of  fact,  vessels  of  very  different  kinds  engaged  in 
either  permanent  or  casual  hospital  service. 

Military  Hospital  Ships 

At  the  Geneva  Conference  of  1868,  a  variety  of  opinions  existed  as  to  the 
status  that  such  ships  should  be  given.     After  allowing  them  the  benefit  of  neu- 


FOURTH  MEETING,  JUNE  20,  1899:  ANNEX  33 

trality  under  certain  conditions,  the  ninth  additional  article  was  finally  adopted, 
as  follows : 

The  military  hospital  ships  remain  under  martial  law  in  all  that  con- 
[23]  cerns  their  stores;  they  become  the  property  of  the  captor,  but  the  latter 
must  not  divert  them  from  their  special  appropriation   during  the  con- 
tinuance of  the  war. 

In  1869  the  French  Government  asked  that  the  following  provision  be  added 
to  Article  9: 

The  vessels  not  equipped  for  fighting,  which,  during  peace,  the  Govern- 
ment shall  have  officially  declared  to  be  intended  to  serve  as  floating  hospital 
ships,  shall,  however,  enjoy  during  the  war  complete  neutrality,  both  as 
regards  stores,  and  also  as  regards  their  staff,  provided  their  equipment  is 
exclusively  appropriated  to  the  special  service  on  which  they  are  employed. 

That  the  British  Government  supported  this  view  may  be  seen  in  the  note 
addressed  to  Prince  de  la  Tour  d'Auvergne  by  Count  Clarendon,  January  21, 
1869. 

The  Commission  has  expressed  itself  as  in  favor  of  the  plan  proposed  in 
1869,  although  it  is  of  the  opinion  that  a  single  general  rule  can  be  formulated 
to  take  the  place  of  Article  9  with  the  additional  provision  just  quoted.  It  has 
seemed  indispensable  to  remove  the  ships  under  consideration  from  exposure  to 
the  vicissitudes  of  warfare,  and  at  the  same  time  to  take  precaution  against  the 
commission  of  abuses. 

The  Commission  accordingly  proposes  to  exempt  from  capture  ships  con- 
structed or  assigned  by  States  specially  and  solely  with  a  view  to  assist  the 
wounded,  sick  and  shipwrecked.  Each  State  will  construct  or  assign  as  it  sees 
fit  the  ships  intended  for  hospital  service ;  no  particular  type  of  vessel  should  be 
required  of  it.  The  essential  point  is  that  the  ships  shall  have  no  other  character 
than  that  of  hospital  ships,  and  consequently  cannot  carry  anything  that  is  not 
intended  for  the  sick  or  wounded  and  those  caring  for  them,  and  that  might  be 
used  for  acts  of  hostility. 

As  each  belligerent  ought  to  know  what  ships  of  his  adversary  are  accorded 
particular  immunities,  the  names  of  these  must  be  communicated  officially.  When 
should  this  communication  be  made?  Naturally  at  the  very  beginning  of  hos- 
tilities. But  it  would  be  too  stringent  a  rule  to  accept  only  notifications  made 
at  that  time.  A  belligerent  may  have  been  taken  unawares  by  war  and  not  have 
hospital  ships  already  constructed  or  assigned ;  or  the  war  might  take  on  such 
great  proportions  that  the  existing  hospital  ships  would  be  deemed  insufficient. 
Would  it  not  be  cruel  to  refuse  belligerents  the  privilege  of  augmenting  their 
hospital  service  to  meet  the  needs  of  the  war,  and  consequently  of  fitting  up  new 
ships  ?  This  is  admitted.  Notification  may  then  be  made  even  during  the  course 
of  hostilities,  but  it  is  to  precede  the  employment  of  the  ship  in  its  new  service. 

This  notification  of  the  names  of  military  hospital  ships  interests  primarily 
the  belligerents ;  it  may  also  be  of  interest  to  neutrals  since,  as  will  be  explained, 
a  special  status  is  enjoyed  by  such  ships  in  neutral  ports.  It  is  accordingly 
desirable  that  the  belligerents  acquaint  neutral  States  with  the  names  of  these 
vessels,  even  if  only  by  publication  in  their  official  journals. 

The  assignment  of  a  vessel  to  hospital  service  cannot  of  course,  after  such 


34  PLENARY  CONFERENCE 

notification  to  the  adversary,  be  changed  while  the  war  lasts.  Otherwise,  abuses 
would  be  possible ;  as,  for  instance,  a  hospital  ship  might  thus  be  enabled  to  reach 
a  given  destination  and  then  might  be  transformed  into  a  vessel  designated  to  take 
part  in  hostilities. 

In  defining  the  immunity  granted  military  hospital  ships,  we  have  avoided 
the  words  "  neutrals  "  and  "  neutrality,"  which  are  in  themselves  inexact  and  have 
long  given  rise  to  just  criticism,  as  was  seen  in  the  subcommission.  We  propose 
saying  simply  that  these  vessels  "  shall  be  respected  and  cannot  be  captured."  In 
this  way  we  state  concretely  and  precisely  the  two  principal  consequences  under- 
stood to  flow  from  the  abstract  idea  of  neutrality.  These  ships  must  not  be 
attacked.  Their  character  as  hospital  ships  is  to  protect  them  from  being  made 
the  object  of  measures  employed  against  ships  of  war,  just  as  ambulances  and 
military  hospitals  are  respected  by  belligerents  under  Article  1  of  the  Convention 
of  1864.  The  respect  thus  assured  hospital  ships  does  not  preclude,  as  we 
shall  show  later  in  speaking  of  Article  4,  such  precautionary  measures  as  may  be 
necessary. 

Again,  military  hospital  ships  are  not  to  be  subjected  to  the  law  of  prize  that 
naturally  applies  to  all  ships  of  the  enemy.  Here  we  have  in  the  higher  interests 
of  humanity  common  to  the  belligerents  a  renunciation  of  an  incontestable  right. 

What  has  been  said  has  to  do  only  with  the  relations  between  belligerents. 
In  such  relations  a  special  status  is  created  for  military  hospital  ships,  and  they 
are  not  treated  as  hostile  ships  of  war.  But  it  has  seemed  necessary  to  extend 
the  same  principle  to  the  relations  between  these  vessels  and  neutral  ports,  for 
otherwise  the  authorities  of  those  parts  might  class  the  hospital  ships 
[24]  with  the  naval  vessels  of  the  belligerent  to  which  they  belong,  and  so 
place  their  stay,  revictualing,  and  departure  under  the  same  strict  rules 
as  are  imposed  upon  men-of-war.  This  would  not  be  reasonable.  We  must  have 
a  precise  rule  both  to  avoid  any  difficulty  between  hospital  ships  and  neutral  port 
authorities  as  well  as  any  complaint  on  the  part  of  belligerents.  Apart  from  this, 
these  military  hospital  ships  will  naturally  be  treated  like  men-of-war,  notably  with 
respect  to  the  advantage  of  exterritoriality.  The  status  of  military  hospital  ships 
might  therefore  be  regulated  as  follows : 

Article  1 

Military  hospital  ships,  that  is  to  say,  ships  constructed  or  assigned  by  States  specially 
and  solely  with  a  view  to  assist  the  wounded,  sick  and  shipwrecked,  the  names  of  which  have 
been  communicated  to  the  belligerent  Powers  at  the  commencement  or  during  the  course  of 
hostilities,  and  in  any  case  before  they  are  employed,  shall  be  respected  and  cannot  be 
captured  while  hostilities  last. 

These  ships,  moreover,  are  not  on  the  same  footing  as  men-of-war  as  regards  their 
stay  in  a  neutral  port. 

Hospital  Ships  of  Belligerents,  other  than  Government  Vessels 

The  thirteenth  additional  article  of  1868  deals  with  hospital  ships  that  are 
•equipped  at  the  expense  of  relief  societies.  We  preserve  the  provision  as  regards 
them  with  a  few  modifications.  The  societies  meant  are  those  officially  recognized 
by  each  belligerent;  the  expression  used  in  Article  13  is  too  vague  and  at  the 
same  time  ambiguous.    The  word  "  neutral,"  used  therein  to  define  the  status  of 


FOURTH  MEETING,  JUNE  20,  1899:  ANNEX  35 

these  vessels,  is  avoided  for  the  reasons  given  in  connection  with  the  preceding 
article. 

Finally,  the  same  notification  from  belligerent  to  belligerent  is  prescribed  as 
for  military  hospital  ships,  and  for  the  same  reason. 

The  provision  of  Article  13  has  been  supplemented  in  a  useful  way  by 
granting  to  boats  which  individuals  may  wish  to  devote  to  the  hospital  service 
the  same  immunity  from  the  moment  they  present  the  same  guaranties.  This  may 
be  a  valuable  resource,  for  in  several  countries  owners  of  pleasure  yachts  have 
expressed  their  intention  of  devoting  them  to  the  hospital  service  in  time  of  war. 

Article  2 

Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  individuals  or 
officially  recognized  relief  societies,  shall  likewise  be  respected  and  exempt  from  capture,  if 
the  belligerent  Power  to  which  they  belong  has  given  them  an  official  commission  and  has 
notified  their  names  to  the  hostile  Power  at  the  commencement  of  or  during  hostilities,  and 
in  any  case  before  they  are  employed. 

These  ships  shall  be  provided  with  a  certificate  from  the  competent  authorities,  declar- 
ing that  they  had  been  under  their  control  while  fitting  out  and  on  final  departure. 

Neutral  Hospital  Ships 

The  future  will  tell  whether  neutral  relief  work  will  take  place  in  naval  wars 
and  if  so  to  what  extent.  We  confine  ourselves  to  saying  that  it  is  proper  under 
conditions  that  appear  to  carry  satisfactory  guaranties.  Such  relief  vessels  must 
be  granted  upon  knowledge  of  the  exclusively  hospital  character  of  the  vessels, 
be  furnished  by  their  Government  with  an  official  commission  which  shall  only 
and  their  names  must  h^  made  known  to  the  belligerent  Powers. 

There  was  some  thought  of  requiring  neutral  hospital  ships  to  place  them- 
selves under  the  direct  authority  of  one  or  other  of  the  belligerents,  but  careful 
study  has  convinced  us  that  this  would  lead  to  serious  difficulties.  What  flag 
would  these  ships  fly?  Would  it  not  be  somewhat  inconsistent  with  the  concept 
of  neutrality  for  a  ship  with  an  official  commission  to  be  incorporated  in  the 
navy  of  one  of  the  belligerents?  It  seemed  to  us  sufficient  to  have  these  vessels, 
which  are  primarily  under  the  control  of  the  Government  from  which  they  have 
received  their  commissions,  subjected  to  the  authority  of  the  belligerents  to  the 
extent  provided  in  Article  4  below. 

Article  3 

Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  individuals  or 
officially  recognized  societies  of  neutral  countries,  shall  be  respected  and  exempt  from 
capture,  if  the  neutral  Power  to  which  they  belong  has  given  them  an  official  commission 
and  has  notified  their  names  to  the  belligerent  Powers  at  the  commencement  of  or  during 
hostilities,  and  in  any  case  before  they  are  employed. 

Rules  Common  to  Hospital  Ships 

The  immunity  granted  to  the  ships  just  spoken  of  is  not  based  on  their  own 
interests  but  on  the  interests  of  the  victims  of  war  to  whom  they  purpose  carrying 
relief ;  and  these  interests,  however  worthy  of  respect,  must  not  cause  us  to  lose 


36  PLENARY  CONFERENCE 

sight  of  the  purpose  of  warfare.      This  twofold  idea  explains  two  series  of 
provisions. 

In  the  first  place  the  humanitarian  purpose  must  not  be  entirely  selfish. 
The  ships  in  question  should  offer  their  assistance  to  the  victims  of  war 
[25]  without  distinction  as  to  nationality.  This  does  not  apply  alone  to 
neutral  ships  which,  for  example,  give  charitable  aid  to  both  parties; 
it  applies  with  equal  force  to  the  vessels  of  the  belligerents.  In  this  way  the 
immunity  which  is  granted  them  finds  its  justification.  Each  belligerent  yields  up 
the  right  of  capturing  vessels  of  this  description  belonging  to  its  adversary,  and 
this  renunciation  is  prompted  both  by  a  charitable  motive  and  by  a  well-understood 
self-interest,  since  when  an  opportunity  arises  these  vessels  will  render  service  to 
their  own  sailors  as  well  as  to  those  of  the  enemy. 

It  must  be  perfectly  understood  that  these  vessels  are  not  to  serve  any  other 
purpose,  that  they  canaot  under  any  pretext  be  directly  or  indirctly  employed  to 
further  any  military  operation :  as  gathering  information,  carrying  dispatches,  or 
transporting  troops,  arms,  or  munitions.  The  contracting  Governments  in  signing 
the  proposed  convention  engage  their  honor  in  this  sense.  It  would  be  perfidy  to 
disregard  it. 

While  holding  scrupulously  to  their  charitable  role,  hospital  ships  must  in 
no  way  hamper  the  movements  of  the  belligerents.  The  latter  can  demand, 
accept,  or  refuse  their  help.  They  may  order  them  to  move  off  and  in  so  doing 
they  may  determine  in  what  direction  they  shall  go.  In  the  latter  case  it  may 
sometimes  seem  necessary  to  put  a  commissioner  on  board  to  ensure  complete 
execution  of  the  orders  given.  Finally,  in  particularly  serious  circumstances  the 
rights  of  the  belligerents  may  go  to  the  length  of  detaining  hospital  ships ;  as  for 
instance  when  necessary  to  preserve  absolute  secrecy  of  operations. 

In  order  to  obviate  disputes  respecting  the  existence  or  the  meaning  of  an 
order  it  is  desirable  that  the  belligerents  should  record  the  order  on  the  log  of 
the  hospital  ship.  This,  however,  may  not  always  be  possible;  the  condition  of 
the  sea  or  extreme  urgency  may  preclude  this  formality ;  and  so  its  performance 
ought  not  to  be  absolutely  requisite.  The  hospital  ship  would  not  be  permitted 
to  invoke  the  absence  of  such  a  record  from  its  log  in  order  to  justify  it  in  disr 
regarding  the  orders  received,  if  these  orders  could  be  proved  in  another  way. 

It  has  sometimes  been  proposed  to  fix  upon  special  signals  for  ships  asking 
for  relief  and  for  hospital  ships  offering  it.  The  Commission  believes  that  no 
special  provision  is  necessary  on  this  point,  that  the  "  international  signal  code  " 
as  adopted  by  all  navies  is  sufficient  for  the  end  in  view. 

Finally,  it  goes  without  saying  that  the"  belligerents  should  have  the  right  to 
control  and  search  all  hospital  ships  without  exception.  They  must  be  able  to 
convince  themselves  that  no  abuse  is  committed  and  that  these  ships  are  in  no 
way  diverted  from  their  charitable  commission.  The  right  of  search  is  here  the 
necessary  counterpart  of  their  immunity  and  it  should  not  be  surprising  to  see  it 
applied  even  to  Government  vessels.  These  vessels  would  be  searched  and  captured 
if  left  under  the  regime  of  the  common  law ;  search  therefore  does  not  injure  their 
situation;  it  is  merely  a  condition  of  the  more  favorable  status  granted  them. 

It  is  proper  to  observe  that  searching  hospital  ships  is  important  not  only  to 
see  that  these  vessels  do  not  depart  from  their  role,  but  also  to  ascertain  the 
condition  of  the  wounded,  sick,  or  shipwrecked  who  may  be  on  board,  as  will  be 
hereafter  explained  in  connection  with  Article  9. 


FOURTH  MEETING,  JUNE  20,  1899:  ANNEX  37 

The  provisions  here  reproduced  are  almost  textually  borrowed  from  para- 
graphs 4,  5,  6,  and  7  of  the  thirteenth  additional  article ;  we  have  merely  extended 
them  to  all  hospital  ships  without  distinction  inasmuch  as  we  grant  immunities 
to  all  ships. 

Article  4 

The  ships  mentioned  in  Articles  1,  2,  and  3  shall  afford  relief  and  assistance  to  the 
wounded,  sick,  and  shipwrecked  of  the  belligerents  without  distinction  of  nationality. 

The  Governments  undertake  not  to  use  these  ships  for  any  military  purpose. 

These  ships  must  in  nowise  hamper  the  movements  of  the  combatants. 

During  and  after  an  engagement  they  will  act  at  their  own  risk  and  peril. 

The  belligerents  will  have  the  right  to  control  and  search  them ;  they  can  refuse  to 
help  them,  order  them  off,  make  them  take  a  certain  course,  and  put  a  commissioner  on 
board;  they  can  even  detain  them,  if  important  circumstances  require  it. 

As  far  as  possible  the  belligerents  shall  enter  in  the  log  of  the  hospital  ships  the  orders 
which  they  give  them. 

Distinctive  Signs  of  Hospital  Ships 

Hospital  ships  ought  to  make  their  character  known  in  an  unmistakable 
manner ;  they  have  the  greatest  interest  in  so  doing.  We  have  taken  the  provisions 
of  paragraph  3  of  the  12th  additional  article  and  paragraph  3  of  Article  13, 
slightly  modifying  the  wording  which  is  no  longer  suitable  for  vessels  of  the 

present  day, 
[26]  AH  vessels  devoted  exclusively  to  hospital  service  are  to  have  a  band  of 
green  or  red  of  the  breadth  indicated.  As  this  might  be  impossible  for 
their  boats  as  well  as  for  yachts  or  small  craft  which  may  be  used  for  hospital 
work,  these  shall  be  similarly  banded  in  such  proportions  as  their  dimensions 
permit. 

These  vessels  shall  make  themselves  known  by  hoisting  their  own  flag  to- 
gether with  the  white  flag  with  the  red  cross  provided  by  the  Geneva  Convention. 
The  rule  which  is  laid  down  for  us  by  that  Convention  applies  to  all  hospital 
ships  whether  enemy  or  neutral.  The  difficulty  raised  in  the  case  of  the  latter 
is  done  away,  as  is  explained  above  in  connection  with  Article  3. 

Article  5 

Military  hospital  ships  shall  be  distinguished  by  being  painted  white  outside  with  a 
horizontal  band  of  green  about  a  metre  and  a  half  in  breadth. 

The  ships  mentioned  in  Articles  2  and  3  shall  be  distinguished  by  being  painted  white 
outside  with  a  horizontal  band  of  red  about  a  metre  and  a  half  in  breadth. 

The  boats  of  the  ships  above-mentioned,  as  also  small  craft  which  may  be  used  for 
hospital  work,  shall  be  distinguished  by  similar  painting. 

All  hospital  ships  shall  make  themselves  known  by  hoisting,  with  their  national  flag, 
the  white  flag  with  a  red  cross  provided  by  the  Geneva  Convention. 

Neutral  Merchant  Vessels 

We  have  to  do  here  with  neutral  vessels  that  happen  for  the  time  being  to 
be  transporting  shipwrecked,  wounded,  or  sick,  whether  they  have  been  specially 
chartered  to  do  so  or  have  chanced  to  be  in  a  position  to  receive  these  victims  of 
warfare.     Strictly  under  the  law,  such  vessels  carrying  the  wounded,  sick,  or 


38  PLENARY  CONFERENCE 

shipwrecked  of  one  belligerent  could,  on  meeting  a  war-ship  of  the  other  bellig- 
erent, be  considered  fair  prize  for  helping  the  Power  whose  nationals  they  were 
carrying.  But  every  one  is  agreed  that  this  harsh  consequence  should  be  pre- 
vented, and  that  these  vessels  should  not  suffer  punishment  for  their  charitable 
aid,  but  should  be  left  their  freedom.  Here  we  see  emphasized  the  advantage  of 
avoiding  the  term  "  neutrality  "  in  describing  the  immunity  from  capture  granted 
to  certain  ships;  for  otherwise  we  should  have  to  use  a  very  strange  form  of 
speech  in  declaring  that  the  "  neutral "  ships  of  which  we  are  speaking  are 
"  neutralized." 

On  the  other  hand,  these  vessels  cannot  rely  on  the  charitable  cooperation 
they  extend  to  escape  the  consequences  of  unneutral  service.  Such  a  case  would 
be  presented  if  they  carried  contraband  of  war,  or  if  they  violated  a  blockade. 
They  would  be  liable  to  the  usual  consequence  of  such  acts. 

In  brief,  a  neutral  ship  does  not  alter  its  status  as  a  neutral  one  way  or 
another  by  carrying  wounded,  sick,  or  shipwrecked.  Probably  this  is  what  was 
meant  by  the  second  paragraph  of  additional  Article  10,  but  the  phraseology 
employed  was  not  clear,  and,  as  we  know,  the  British  Government  sought  an 
explanation.  The  provision  which  we  now  submit  is  in  harmony  with  juridical 
principles  and  with  the  interpretation  agreed  upon  between  the  British  and  French 
Governments  in  1869.^ 

Article  6 

Neutral  merchantmen,  yachts,  or  vessels,  having,  or  taking  on  board,  sick,  wounded, 
or  shipwrecked  of  the  belligerents,  cannot  be  captured  for  so  doing,  but  they  are  liable 
to  capture  for  any  violation  of  neutrality  they  may  have  committed. 

It  will  be  noticed  that  we  are  not  proposing  any  article  covering  the  case 
where  a  merchant  vessel  of  one  of  the  belligerents  is  carrying  sick  or  wounded. 
In  the  absence  of  such  a  provision  the  common  law  prevails  and  the  vessel  is, 
consequently,  exposed  to  capture.  This  seems  logical  and  correct  in  principle. 
Paragraph  one  of  the  tenth  additional  article  allows  the  ship,  if  charged  exclu- 
sively with  removal  of  sick  and  wounded,  to  be  "  protected  by  neutrality  " ;  it 
would  not  be  so  where  there  were  passengers  and  goods  besides  the  sick  or 
wounded.     We  have  not  deemed  this  a  proper  distinction. 

Similarly,  the  Commission  does  not  propose  for  adoption  any  text  cor- 
responding to  the  6th  additional  article,  as  the  case  provided  for  therein  seemed 
included  in  those  already  dealt  with  and  accordingly  to  require  no  special  mention. 
That  article  deals  with  boats  which  at  their  own  risk  and  peril,  during  and  after 
an  engagement,  pick  up  the  shipwrecked  or  wounded,  or  which  having  picked 
them  up,  convey  them  on  board  a  neutral  or  hospital  ship.  If  these  boats  belong 
to  the  neutral  or  hospital  ship,  they  have  the  same  character  as  their  ship ;  they 
cannot  be  captured  under  the  rules  already  laid  down.  If,  on  the  other 
[27]  hand,  they  belong  to  a  war-ship  or  merchantman  of  one  of  the  belligerents, 
they  may  be  captured  by  the  other  belligerent.  No  special  circumstance 
appears  to  exist  in  their  case  to  remove  them  from  the  application  of  the 
principles  already  stated,  which  appear  to  us  to  cover  all  probable  cases.  We 
have  thus  dealt  with  the  sixth  point  of  Count  Mouravieff's  circular. 

'  Letter  of  the  Earl  of  Clarendon  of  January  21,  1869,  and  reply  of  Prince  de  la  Tour 
D'AtrvERGNE  of  the  following  February  26. 


FOURTH  MEETING,  JUNE  20,  1899:  ANNEX  39 

THE  MEDICAL  PERSONNEL 

There  is  no  need,  theoretically,  to  concern  ourselves  with  the  medical  person- 
nel on  board  a  hospital  ship ;  as  the  ship  itself  is  respected,  the  personnel  it  carries 
will  not  be  disturbed  in  the  discharge  of  duty.  But  the  case  will  be  different 
with  a  war  vessel  that  falls  into  the  power  of  the  enemy  and  has  on  board  a 
medical  staff;  we  may  also  imagine  an  enemy  merchantman  carrying  sick  and 
wounded  with  physicians  and  nurses  to  care  for  them.  It  would  be  well  to 
decide,  by  analogy  with  land  warfare,  that  whenever  a  ship  is  captured,  the 
medical  personnel  thereon  shall  be  inviolable,  or  in  other  words,  shall  not  be 
made  prisoners  of  war.  The  terms  "  neutral "  and  "  neutrality "  should  be 
eschewed  in  speaking  of  persons  as  well  as  of  ships. 

The  personnel  should  continue  to  perform  their  functions  so  far  as  necessary. 
Possibly  the  victor  may  not  have  at  his  disposal  a  sufficient  number  of  physicians 
and  nurses  to  take  care  of  the  sick  who  have  fallen  into  his  power. 

It  is  well  to  lay  down  the  principle  that  the  medical  personnel  in  the  hands 
of  the  enemy  are  not  prisoners  of  war,  but  not  to  say  just  when  they  will  have 
the  right  to  leave.  This  point  must  be  left  to  the  discretion  of  the  commander 
in  chief,  as  circumstances  vary  and  do  not  well  lend  themselves  to  precise  regu- 
lation. The  commander,  of  course,  must  be  imbued  with  the  knowledge  that  he 
has  no  right  to  detain  them  arbitrarily,  since  they  are  not  prisoners  of  war. 

Lastly,  we  must  ensure  that  this  personnel  be  paid  for  the  time  during  which 
they  are  detained  with  the  enemy. 

We  may  have  some  hesitation  as  to  the  amount  of  this  pay.  Shall  it  be  what 
the  physicians  who  are  detained  had  in  their  own  army,  or  what  physicians  of  the 
same  grade  in  the  enemy's  army  receive?  The  stricter  view  is  that  it  should  be 
only  the  lower  figure.  It  has,  however,  seemed  simpler  and  fairer  to  allow  the 
physicians  the  enjoyment  of  their  salaries  intact,  without  entering  into  details 
about  salaries  prevailing  with  the  belligerent  in  whose  hands  the  physicians  are. 

The  text  proposed  below  is  taken  from  the  seventh  and  eighth  additional 
articles,  which  have  been  changed  in  but  a  few  points. 

Article  7 

The  religious,  medical,  and  hospital  staff  of  any  captured  ship  is  inviolable,  and  its 
members  cannot  be  made  prisoners  of  war.  On  leaving  the  ship  they  take  with  them  the 
objects  and  surgical  instruments  which  are  their  own  private  property. 

This  staff  shall  continue  to  discharge  its  duties  while  necessary,  and  can  afterwards 
leave  when  the  commander  in  chief  considers  it  possible. 

The  belligerents  must  guarantee  to  the  said  staff  when  it  has  fallen  into  their  hands 
the  enjoyment  of  their  salaries  intact. 

WOUNDED,  SICK,  OR  SHIPWRECKED 

The  general  fundamental  principle  of  the  Geneva  Convention,  which  is  that 
there  exists  an  obligation  to  give  succor  to  the  victims  of  military  operations,  is 
one  that  should  be  applied  alike  to  war  on  land  and  war  on  sea.  This  idea  has 
been  given  application  in  connection  with  hospital  ships  (see  Article  4,  paragraph 
1).  It  also  finds  expression  in  the  first  paragraph  of  Additional  Article  11  (our 
Article  8). 


40  PLENARY  CONFERENCE 

Article  8 

Sailors  and  soldiers  on  board  when  sick  or  wounded,  to  whatever  nation  they  belong, 
shall  be  protected  and  tended  by  the  captors. 

In  the  provisions  submitted  to  the  Conference  by  the  Commission,  we  have 
spoken  of  wounded,  sick,  and  shipwrecked,  not  of  victims  of  maritime  warfare. 
The  latter  expression,  ahhough  generally  accurate,  would  not  always  be  so, 
and  therefore  should  not  appear.  The  ruleo  set  forth  are  to  be  applied  from  the 
moment  that  there  are  wounded  and  sick  on  board  sea-going  vessels,  it  being 
immaterial  where  the  wound  was  given  or  the  sickness  contracted,  whether  on 
land  or  at  sea.  Consequently,  if  a  vessel's  duty  is  to  carry  by  sea  the  wounded 
or  sick  of  land  forces,  this  vessel  and  these  sick  and  wounded  come  under  the 
provisions  of  our  project.  On  the  other  hand,  it  is  clear  that  if  sick  or  wounded 
sailors  are  disembarked  and  placed  in  an  ambulance  or  a  hospital,  the 
[28]  Geneva  Convention  then  applies  to  them  in  all  respects. 

As  this  observation  seems  to  us  to  respond  fully  to  the  remarks  made 
in  the  subcommission  on  this  point,  we  think  it  unnecessary  to  insert  any  provision 
dealing  especially  with  it. 

The  status  to  be  given  the  wounded,  sick,  and  shipwrecked  has  given  rise 
to  considerable  controversy  and  even  to  the  somewhat  confused  rules  of  the 
additional  articles.  See  Article  6,  paragraph  3 ;  Article  10,  paragraph  1 ;  Article 
11,  paragraph  2;  and  Article  13,  paragraph  8.  It  seemed  to  the  Commission  that 
the  difficulty  arose  mainly  out  of  the  fact  that  the  very  simple  general  principle 
to  be  applied  to  the  different  cases  had  been  lost  sight  of.  This  principle  is  as  fol- 
lows :  a  belligerent  has  in  his  power  hostile  combatants,  and  these  combatants  are 
his  prisoners.  It  matters  little  that  they  are  wounded,  sick,  or  shipwrecked,  or 
that  they  have  been  taken  on  board  a  vessel  of  any  particular  kind.  These 
circumstances  do  not  affect  their  legal  status.  This  is  the  governing  principle,  and 
its  application  is  not  always  consistent  with  the  articles  of  1868.  A  belligerent's 
hospital  ship  takes  on  board  the  sick,  wounded,  or  shipwrecked  of  its  own  nation- 
ality and  carries  them  to  a  port  of  its  own  country ;  why  should  not  these  be  as 
unrestrained  as  those  who  are  picked  up  by  an  ambulance?  The  last  paragraph 
of  the  13th  additional  article  says,  however,  that  the  wounded  and  shipwrecked 
taken  on  board  hospital  ships  cannot  serve  again  during  the  war. 

If  we  suppose  that  the  same  hospital  ship,  with  sick,  wounded,  or  shipwrecked 
of  its  own  nationality  on  board,  meets  a  cruiser  of  the  enemy,  why  would  not  the 
latter  be  justified  in  considering  as  prisoners  of  war  the  combatants  thus  coming 
into  its  power?  There  are  some  among  the  combatants,  such  as  the  sick  and 
wounded,  who  have  a  right  to  special  treatment,  and  towards  whom  the  captor 
has  certain  duties;  they  are  none  the  less  all  prisoners  of  war.  The  additional 
articles  admit  this  to  the  extent  of  making  such  combatants  incapable  of  further 
service  in  the  war  (Article  10,  paragraph  1,  and  Article  13,  towards  the  end). 
But  this  provision  does  not  offer  a  sufficient  guaranty. 

The  cruiser  therefore  remains  free  to  act  according  to  circumstances ;  it  may 
keep  the  prisoners,  or  send  them  to  a  port  of  its  own  country,  or  to  a  neutral 
port,  or,  in  case  of  need,  when  there  is  no  other  port  near,  to  one  of  the  enemy's 
ports.     It  will  also  take  the  last-mentioned  course  when  there  are  only  sick  or 


FOURTH  MEETING,  JUNE  20,  1899:  ANNEX  41 

wounded  whose  condition  is  serious.  It  will  not  be  interested  in  burdening 
itself  or  its  own  country  with  the  sick  and  wounded  of  the  enemy.  It  will 
therefore  generally  be  the  case  that  hospital  ships  or  others  having  sick  and 
wounded  will  not  be  diverted  from  their  destination.  Both  humanity  and  the 
interest  of  the  belligerent  will  enjoin  this  course.  But  the  right  of  the  belligerent 
cannot  be  ignored.  The  wounded  or  sick  who  are  thus  returned  to  their  country 
cannot  serve  during  the  continuance  of  the  war.  It  is  unnecessary  to  add  that 
if  they  should  be  exchanged  their  status  as  prisoners  of  war  at  liberty  on  parole 
would  cease,  and  they  would  resume  their  freedom  of  action. 

Article  9 

The  shipwrecked,  wounded,  or  sick  of  one  of  the  belligerents  who  fall  into  the  power 
of  the  other,  are  prisoners  of  war.  The  captor  must  decide,  according  to  circumstances, 
whether  to  keep  them,  send  them  to  a  port  of  his  own  country,  to  a  neutral  port,  or  even 
to  an  enemy  port.  In  this  last  case,  prisoners  thus  repatriated  cannot  serve  again  while 
the  war  lasts. 

The  last  provision  remaining  to  be  spoken  of  has  no  corresponding  one  in  the 
additional  articles.  It  deals  with  the  case  of  the  shipwrecked,  wounded,  or  sick 
who  are  landed  in  a  neutral  port.  This  case  must  be  provided  for,  both  because 
it  will  naturally  happen  quite  frequently  and  may,  in  the  absence  of  a  precise 
rule,  give  rise  to  difficulties.  Of  course  a  neutral  Government  is  not  bound  to 
receive  within  its  territory  the  sick,  wounded,  or  shipwrecked.  Can  it  do  so  even, 
without  failing  in  the  duties  of  neutrality?  The  doubt  arises  from  the  fact  that 
in  certain  cases  a  belligerent  will  often  court  danger  in  getting  rid  of  the  sick 
and  wounded  who  encumber  him  and  hamper  him  in  his  operations ;  the  neutral 
territory  will  thus  help  him  to  execute  his  hostile  enterprise  better.  Nevertheless, 
it  has  seemed  that  considerations  of  humanity  ought  to  prevail  here.  In  most 
cases  the  disembarkment  of  the  sick  and  wounded  picked  up,  for  instance,  by 
hospital  ships  or  merchantmen  would  be  purely  an  act  of  charity,  and  if  this  were 
not  done  the  suffering  of  the  sick  and  wounded  would  be  needlessly  aggravated 
by  prolonging  the  passage  so  as  to  reach  a  port  of  their  own  nation.  It  may 
happen  too  that  the  wounded  and  the  sick  thus  landed  will  belong  to  both 
belligerents.  The  neutral  State  which  has  consented  to  the  disembarkment  is 
obliged  to  take  the  necessary  measures  to  the  end  that  his  territory  may  serve 
the  victims  of  the  war  only  as  an  asylum  and  that  the  individuals  thus  harbored 

shall  not  be  able  to  take  part  in  the  hostilities  again.  This  is  an  important 
[29]  point,  especially  in  the  case  of  the  shipwrecked. 

Lastly,  it  is  clear  that  the  expenses  occasioned  by  the  presence  of  these 
sick,  wounded,  or  shipwrecked  ought  not  to  be  borne  eventually  by  the  neutral 
State.     They  should  be  refunded  by  the  State  to  which  the  individuals  belong. 

Article  10 

The  shipwrecked,  wounded,  or  sick,  who  are  landed  at  a  neutral  port,  with  the  consent 
of  the  local  authorities,  must,  unless  an  arrangement  is  made  to  the  contrary  between  the 
neutral  State  and  the  belligerent  States,  be  guarded  by  the  neutral  State  so  as  to  prevent 
their  again  taking  part  in  the  operations  of  the  war. 

The  expenses  of  tending  them  in  hospital  and  interning  them  shall  be  borne  by  the 
State  to  which  the  shipwrecked,  sick,  or  wounded  belong. 


42  PLENARY  CONFERENCE 

The  Commission  does  not  offer  any  provision  corresponding  to  additional 
Article  14.  It  was  agreed  without  debate  that  this  article  should  be  dropped. 
Doubtless  it  may  unfortunately  happen  that  the  rules  laid  down,  if  made 
obligatory,  will  not  always  be  obeyed,  and  that  more  or  less  serious  abuses  will 
be  committed.  Such  regrettable  acts  will  entail  the  ordinary  penalties  of  the  law 
of  nations ;  they  cannot  be  prevented  by  a  special  provision  which  would  be  of  a 
nature  to  weaken  the  legal  and  moral  force  of  the  preceding  rules. 


Text  submitted  to  the  Conference 

Article  1 

Military  hospital  ships,  that  is  to  say,  ships  constructed  or  assigned  by  States 
especially  and  solely  with  a  view  to  assist  the  wounded,  sick  and  shipwrecked, 
the  names  of  which  have  been  communicated  to  the  belligerent  Powers  at  the 
commencement  or  during  the  course  of  hostilities,  and  in  any  case  before  they 
are  employed,  shall  be  respected  and  cannot  be  captured  while  hostilities  last. 

These  ships,  moreover,  are  not  on  the  same  footing  as  men-of-war  as  regards 
their  stay  in  a  neutral  port. 

Article  2 

Hospital  ships,  equipped  v^-holly  or  in  part  at  tne  expense  of  private  individ- 
uals or  officially  recognized  relief  societies,  shall  likewise  be  respected  and  exempt 
from  capture,  if  the  belligerent  Power  to  which  they  belong  has  given  them  an 
official  commission  and  has  notified  their  names  to  the  hostile  Power  at  the 
commencement  of  or  during  hostilities,  and  in  any  case  before  they  are  employed. 

These  ships  shall  be  provided  with  a  certificate  from  the  competent  authorities, 
declaring  that  they  had  been  under  their  control  while  fitting  out  and  on  final 
departure. 

Article  3 

Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  indi- 
viduals or  officially  recognized  societies  of  neutral  countries,  shall  be  respected  and 
exempt  from  capture,  if  the  neutral  Power  to  which  they  belong  has  given  them 
an  official  commission  and  has  notified  their  names  to  the  belligerent  Powers  at 
the  commencement  of  or  during  hostilities,  and  in  any  case  before  they  are 
employed. 

Article  4 

The  ships  mentioned  in  Articles  1,  2,  and  3  shall  afford  relief  and  assistance 
to  the  wounded,  sick  and  shipwrecked  of  the  belligerents  without  distinction  of 
nationality. 

The  Governments  undertake  not  to  use  these  ships  for  any  military  purpose. 

The  ships  must  in  nowise  hamper  the  movements  of  the  combatants. 


FOURTH  MEETING,  JUNE  20,  1899:  ANNEX  43 

During  and  after  an  engagement  they  will  act  at  their  own  risk  and  peril. 

The  belligerents  will  have  the  right  to  control  and  search  them;  they  can 
refuse  to  help  them,  order  them  off,  make  them  take  a  certain  course,  and  put 
a  commissioner  on  board ;  they  can  even  detain  them,  if  important  circumstances 
require  it. 

As  far  as  possible  the  belligerents  shall  enter  in  the  log  of  the  hospital  ships 
the  orders  which  they  give  them. 

Article  5 

Military  hospital  ships  shall  be  distinguished  by  being  painted  white  Outside 
with  a  horizontal  band  of  green  about  a  metre  and  a  half  in  breadth. 

The  ships  mentioned  in  Articles  2  and  3  shall  be  distinguished  by  being  painted 
white  outside  with  a  horizontal  band  of  red  about  a  metre  and  a  half  in  breadth. 

The  boats  of  the  ships  above-mentioned,  as  also  small  craft  which  may  be 
used  for  hospital  work,  shall  be  distinguished  by  similar  painting. 

All  hospital  ships  shall  make  themselves  known  by  hoisting,  with  their 
national  flag,  the  white  flag  with  a  red  cross  provided  by  the  Geneva  Convention. 

[30]  Article  6 

Neutral  merchantmen,  yachts,  or  vessels,  having,  or  taking  on  board,  sick, 
wounded,  or  shipwrecked  of  the  belligerents,  cannot  be  captured  for  so  doing, 
but  they  are  liable  to  capture  for  any  violation  of  neutrality  they  may  have 
and  its  members  cannot  be  made  prisoners  of  war.  On  leaving  the  ship  they 
take  with  them  the  objects  and  surgical  instruments  which  are  their  own  private 
property. 

Article  7 

The  religious,  medical,  and  hospital  staff  of  any  captured  ship  is  inviolable, 
and  its  members  cannot  be  made  prisoners  of  war.  On  leaving  the  ship  they 
take  with  them  the  objects  and  surgical  instruments  which  are  their  own  private 
property. 

This  staff  shall  continue  to  discharge  its  duties  while  necessary,  and  can  after- 
wards leave  when  the  commander  in  chief  considers  it  possible. 

The  belligerents  must  guarantee  to  the  said  staff  when  it  has  fallen  into  their 
hands  the  enjoyment  of  their  salaries  intact. 

Article  8 

Sailors  and  soldiers  on  board  when  sick  or  wounded,  to  whatever  nation  they 
belong,  shall  be  protected  and  tended  by  the  captors. 

Article  9 

The  shipwrecked,  wounded  or  sick  of  one  of  the  belligerents  who  fall  into 
the  power  of  the  other,  are  prisoners  of  war.  The  captor  must  decide,  according 
to  circumstances,  whether  to  keep  them,  send  them  to  a  port  of  his  own  country, 
to  a  neutral  port,  or  even  to  the  enemy  port.  In  this  last  case,  the  prisoners  thus 
repatriated  cannot  serve  again  while  the  war  lasts. 

Article  10 

The  shipwrecked,  wounded,  or  sick,  who  are  landed  at  a  neutral  port,  with 
the  consent  of  the  local  authorities,  must,  unless  an  arrangement  is  made  to  the 


44  PLENARY  CONFERENCE 

contrary  between  the  neutral  State  and  the  beUigerent  States,  be  guarded  by  the 
neutral  State  so  as  to  prevent  their  again  taking  part  in  the  operations  of  the 
war. 

The  expenses  of  tending  them  in  hospital  and  interning  them  shall  be  borne 
by  the  State  to  which  the  shipwrecked,  sick  or  wounded  belong. 


FIFTH  MEETING 

JULY  5,   1899 


His  Excellency  Mr.  Staal  presiding. 

The  meeting  opens  at  3 :  45  o'clock. 

The  minutes  of  the  meeting  of  June  20  are  adopted. 

The  President  states  that  the  first  business  on  the  agenda  is  the  examination 
and  confirmation  of  the  draft  declaration  or  convention  concerning  the  laws  and 
customs  of  war  on  land.     He  adds : 

Before  giving  the  floor  to  the  reporter,  I  must  express  the  sentiments  of  the 
Conference,  first  before  the  eminent  jurist  who  has  presided  with  his  customary 
talents  over  the  twelve  meetings  of  the  subcommission :  Mr.  Martens  is  too  close 
to  us  for  me  to  say  more  of  him  without  danger  of  seeming  partial.  I  may  be 
permitted,  however,  to  say  to  him  that  a  great  part  of  the  success  is  due  to  him : 
he  has  devoted  his  heart  and  mind  to  his  task.  Theses  twelve  meetings  bear 
witness  to  the  arduous  and  continuous  work  to  which  the  subcommission  bent 
itself  to  bring  to  a  good  issue  the  work  which  was  assigned  it ;  the  subcommission, 
in  which  men  of  such  high  ability  have  acted,  deserves  all  our  praise ;  we  ought 
to  say  as  much  of  the  Drafting  Committee.  You  have  had  once  more  the  good 
fortune  to  find  in  Mr.  Rolin  the  ideal  reporter:  exact,  impartial,  capable  of 
dealing  with  the  whole  and  with  detail;  let  us  thank  him  for  his  good  work. 
(Applause.) 

The  President  grants  the  floor  to  Mr.  Martens,  president  of  the  Second 
Commission,  in  order  to  give  an  account  to  the  Conference  of  the  decisions  reached 
and  the  vaux  expressed  by  this  Commission. 

Mr.  Martens  does  not  think  that  the  Conference  would  care  to  hear  reread 
the  text  of  the  sixty  articles  adopted  by  the  Commission  nor  the  report  presented 
by  Mr.  Rolin  on  the  same  subject.  These  documents  are  subject  to  the  inspec- 
tion of  the  assembly  and  Mr.  Martens  asks  the  Conference  kindly  to  approve  the 
work  of  the  Second  Commission  as  shown  from  the  texts  voted  on  and  from 
the  interpretative  report  accompanying  them. 

As  this  motion  meets  with  no  objection,  the  President  declares  it  carried. 

Mr.  Martens  adds  that,  by  virtue  of  the  decision  which  it  has  just  reached, 

the  Conference  accepts  the  report  of  Mr.  Rolin  as  an  authentic  interpretative 

commentary  of  the  articles  voted  on,  coming  from  the  whole  Conference. 

[31]  Mr.  Martens  says  that  he  has  been  instructed  by  the  Second  Commission 

to  submit  to  the  approval   of  the   Conference  several  vocux  which   that 

Commission  discussed  and  adopted. 

The  first  of  these  voeux  was  expressed  on  the  initiative  of  the  first  delegate 
of  Luxemburg,  He  expresses  the  desire  of  seeing  the  question  of  the  rights  and 
duties  of  neutrals  inscribed  on  the  program  of  a  later  Conference. 

45 


46  PLENARY  CONFERENCE 

This  vceu  is  adopted  without  discussion. 

The  second  voeii  bears  on  the  bombardment  by  a  naval  force  of  ports,  cities 
and  coast  towns  which  are  not  defended. 

The  Second  Commission  has  considered  that  it  would  be  too  complicated  to 
try  to  solve  this  question  in  the  present  Conference  by  extending  to  the  bombard- 
ment of  undefended  ports  the  prohibition  prescribed  by  Article  25  of  the  Con- 
vention relative  to  the  laws  of  warfare  on  land.  It  has,  therefore,  unanimously 
with  one  abstention,  expressed  the  voou  that  this  question  be  deferred  for  the 
examination  of  a  later  Conference. 

It  is  well  understood  that  this  vceu  does  not  bind  the  Governments  and  has 
no  other  object  than  to  draw  their  serious  attention  to  this  important  subject. 

His  Excellency  Sir  Julian  Pauncefote  says  that  in  his  opinion  a  vosu  of  this 
nature  exercises  up  to  a  certain  point  a  moral  pressure  upon  the  Governments. 

He  recalls  that  the  British  Government  took  part  in  the  Brussels  Conference 
only  on  condition  that  naval  questions  should  remain  outside  ot  the  provisions 
adopted. 

In  the  absence  of  new  instructions  he  could  not  take  part  in  any  decision 
of  this  nature,  even  though  it  had  only  the  bearing  of  a  simple  vceu. 

The  President  has  the  declaration  of  Sir  Julian  Pauncefote  recorded  and 
declares  the  second  voeu  of  the  Commission  adopted. 

Mr.  Martens  says  that  the  third  voeu  relates  to  the  revision  of  the  Geneva 
Convention.  It  was  proposed  by  the  first  subcommission  of  the  Second  Com- 
mission at  the  suggestion  of  Mr.  Asser,  its  president,  as  follows : 

The  Conference  at  The  Hague,  taking  into  consideration  the  preliminary  steps  taken  by 
the  Federal  Government  of  Switzerland  for  the  revision  of  the  Geneva  Convention, 
expresses  the  voeu  that  after  a  brief  delay  there  should  be  a  meeting  of  a  special  conference, 
having  as  its  object  the  revision  of  the  said  Convention. 

This  text  was  adopted  by  the  Second  Commission  with  a  motion  of  Mr. 
Beldiman  thus  worded: 

In  expressing  the  voeu  relative  to  the  Geneva  Convention,  the  Second  Commission 
cordially  endorses  the  declaration  made  by  Mr.  Asser,  president  of  the  first  subcommission, 
at  the  meeting  of  June  20,  at  which  the  delegate  of  the  Netherlands  stated  that  all  of 
the  States  represented  at  The  Hague  would  be  happy  to  see  the  Federal  Council  of  Switzer- 
land take  the  initiative,  after  a  brief  delay,  in  calling  a  conference  with  the  view  to  a 
convention  for  the  revision  of  the  Geneva  Convention. 

Mr.  Martens  states  that  in  expressing  this  voeu  the  Conference  does  not  mean 
to  give  the  Swiss  Federal  Government  a  formal  order  to  call  the  conference  of 
revision,  but  merely  expresses  the  desire  to  see  the  revision  of  the  Geneva  Con- 
vention carried  out  under  the  auspices  of  the  Swiss  Government. 

The  voeu  and  the  motion  proposed  by  the  Second  Commission  are  adopted. 

Mr.  Martens  says  that  the  fourth  vceu  bears  on  a  proposal  made  to  the 
Conference  in  the  form  of  a  letter  addressed  to  its  president  by  the  delegation  of 
the  United  States  of  America  looking  towards  a  declaration  of  the  immunity  of 
private  property  on  sea  in  time  of  war. 

The  Second  Commission  has  not  thought  it  possible  for  it  to  take  up  this 
question,  either  from  the  point  of  view  of  its  competence,  or  from  that  of  the 
substance  of  the  matter  itself ;  but  it  believed  that  it  should  express  the  voeu  that 


FIFTH  MEETING,  JULY  5,  1899  47 

the  proposal  presented  by  the  delegation  of  the  United  States  be  put  on  the 
program  of  a  later  Conference. 

His  Excellency  Mr.  White  asks  to  develop  his  proposition  and  expresses 
himself  in  the  following  terms: 

The  memorial  which  has  been  communicated  to  the  members  of  the  Con- 
ference shows  that  for  more  than  a  century  the  Government  of  the  United  States 
has  earnestly  endeavored  to  secure  the  adoption  of  the  principle  of  the  inviolability 
of  private  property,  with  the  exception  of  contraband,  in  time  of  naval  war. 

In  heartily  responding  to  the  appeal  of  His  Majesty  the  Emperor  of  Russia, 
and  to  the  invitation  of  the  Government  of  the  Netherlands  to  take  part  in  this 
Conference,  my  Government  desired  not  only  to  give  its  support  to  the  main 
purposes  announced  in  the  circular,  but  it  saw  there  a  proper  occasion  to  place 
this  principle  once  more  before  the  friendly  nations,  in  the  hope  that  it  might 
be  adopted  as  a  part  of  international  law. 

The  commission  of  the  United  States  of  America  has  found  several  Powers 
ready  to  accept  its  proposal,  and  others  whose  opinions  evidently  inclined 
[32]  towards  its  adoption,  but  it  has  not  succeeded  in  securing  a  support  suffi- 
ciently unanimous  to  justify  it  in  pressing  the  matter  further  during  the 
present  Conference. 

The  doubt  generally  entertained  as  to  the  competence  of  this  Conference,  a 
competence  determined  by  the  invitation,  and  the  fact  that  the  delegates  of 
several  great  Powers  have  not  been  furnished  with  special  instructions  upon  this 
subject,  and,  above  all,  the  necessity  which  the  Conference  feels  of  giving  all 
possible  time  to  the  great  questions  which  more  directly  interest  the  nations,  all 
these  circumstances  make  it  evident  that  there  cannot  be  expected  of  this  Con- 
ference a  positive  and  final  action  regarding  this  subject. 

But,  obliged  to  recognize  this  fact  with  a  sincere  regret,  we  believe  that  our 
instructions  impose  upon  us  the  duty  of  doing  all  that  is  within  our  power  to 
bring  this  great  question,  so  important  for  us  all,  before  the  minds  of  the  nations 
represented  here. 

We  have  not  lost  the  hope  of  seeing  this  question  brought  to  a  happy  solution. 

Nothing  is  more  evident  than  the  fact  that,  more  and  more,  eminent  thinkers 
in  the  domain  of  international  law  are  inclining  towards  the  doctrine  which  we 
defend. 

More  and  more,  also,  it  is  becoming  plain  that  the  adoption  of  this  principle 
is  in  the  interest  of  all  the  nations. 

It  is  equally  recognized  that  every  agreement  to  abstain  from  privateering  is 
vain,  if  it  does  not  at  the  same  time  recognize  the  inviolability  of  all  private 
property  on  the  sea,  with  the  exception  of  contraband  of  war. 

The  two  systems  of  injuring  the  enemy  during  war  are  logically  united.  If 
the  use  of  one  is  abstained  from,  a  necessary  guaranty  is  that  the  other  will  not 
be  resorted  to. 

It  is  becoming  more  and  more  evident  that  the  eminent  Count  Nesselrode 
expressed  not  only  his  profound  conviction,  but  also  a  great  truth,  in  affirming 
that  this  declaration,  which  the  United  States  supported  in  his  time  as  it  does 
now,  will  be  a  crown  of  glory  to  modern  diplomacy. 

I  am  not  ignorant  that  an  argument  has  been  advanced  which,  at  first  sight, 
may  seem  to  have  considerable  force,  namely,  that  even  if  we  should  guarantee 
the  inviolability  of  private  property,  in  so  far  as  it  is  not  contraband  of  war. 


48  PLENARY  CONFERENCE 

a  new  and  very  knotty  question  would  immediately  arise,  namely;  the  definition 
of  what  should  be  understood  to-day  by  contraband  of  war. 

Attention  is  naturally  directed  toward  the  fact  that  coal,  breadstuffs,  also 
rice  (in  one  of  the  recent  wars  between  two  great  Powers)  and  even  ships,  fell 
under  the  denomination  of  contraband. 

But  I  surely  need  not  say  to  an  audience  as  intelligent  and  enlightened  as 
this,  that  the  difficulties  which  may  beset  the  taking  of  a  second  step  in  an  affair 
of  this  kind  do  not  constitute  a  reason  for  renouncing  the  first  step. 

The  wiser  course  would  seem  to  be  to  take  the  first  step  and,  having  taken 
it,  to  consider  what  should  be  the  second. 

How  can  I  deny  that  the  efforts  made  in  behalf  of  the  cause  we  defend,  have 
been  weakened  by  some  of  the  arguments  used  in  its  support?  It  must  be 
admi|:ted  that  more  harm  than  good  has  been  done  by  some  of  the  arguments 
which  have  likened  private  property  on  the  sea  to  private  property  on  the  land 
in  time  of  war.  But  that  proves  nothing  against  the  crushing  mass  of  arguments 
in  favor  of  our  proposition. 

If  the  question  were  under  discussion  at  this  moment,  if  there  were  not  other 
subjects  on  which  the  attention  of  the  world  is  centered  and  which  absorb  our 
activities,  I  should  like  to  direct  your  thoughts  to  the  immense  losses  which  would 
be  suffered  by  the  nations  in  case  of  a  declaration  of  war.  I  would  cite  as 
example  the  losses  resulting  from  the  denationalization  of  vessels  and  merchandise, 
without  a  proportionate  effect  upon  the  decision  of  the  question  in  dispute. 

A  rapid  glance  at  the  history  of  the  Confederate  cruisers  during  the  American 
Civil  War  shows  how  serious  would  be  the  loss  of  the  Power  directly  interested. 
Three  Confederate  cruisers  alone  played  a  part  of  considerable  importance ;  their 
prizes  amounted  to  169  ships ;  the  rate  of  insurance  between  the  United  States  and 
Great  Britain  increased  from  30  to  120  shillings  per  ton ;  nearly  one  half  million 
tons  of  American  merchant  shipping  were  placed  under  the  English  flag ;  the  final 
result  was  the  almost  entire  disappearance  of  the  merchant  marine  of  the  United 
States.  If  such  a  result  was  secured  by  the  operation  of  three  small  ships,  far 
from  excellent  and  badly  equipped,  what    would  happen  with  the  means  which 

to-day  are  at  the  disposal  of  the  large  nations  ? 
[33]  Yet  all  the  world  knows  that  this  use  of  privateers  had  not  the  slightest 
effect  in  terminating  or  even  shortening  the  war.  If  those  losses  had 
been  ten  times  greater,  they  would  have  contributed  nothing  to  the  abridgement 
of  hostilities.  There  would  have  been  simply  the  destruction  of  a  large  quantity 
of  property  belonging  to  the  most  laborious  and  the  most  meritorious  part  of  our 
population,  that  of  our  sailors  who  had  invested  in  their  ships  that  which  they 
had  earned.  The  most  evident  result  was  to  leave  a  cause  of  resentment  between 
the  two  great  nations, — a  resentment  which  a  famous  arbitration  succeeded  in 
removing.  The  only  effective  measure  for  terminating  the  war  by  the  action  of  a 
navy  is  the  maintenance  of  a  blockade. 

To-day  the  transportation  of  merchandise  by  land  has  so  developed  that  the 
interruption  of  such  transport  by  sea  cannot,  in  general,  contribute  toward  hasten- 
ing the  end  of  the  war,  but  the  effect  may  be  so  great  in  the  destruction  of  wealth 
accumulated  by  the  industry  of  man,  as  to  require  several  generations  to  repair 
the  loss,  and  thus  the  whole  world  is  made  to  suffer. 

Gentlemen,  the  American  delegation  does  not  defend  the  particular  interests 
of  its  own  country.     We  know  very  well  that,  under  present  conditions,  if  war 


FIFTH  MEETING,  JULY  5,  1899  49 

should  break  out  between  two  or  more  European  Powers,  there  would  be  immedi- 
ately an  enormous  transfer  of  freight  and  ships  to  neutral  countries,  and  that  the 
United  States,  as  one  of  them,  would  reap  from  it  enormous  advantages.  But 
my  government  does  not  desire  to  favor  interests  of  this  kind.  May  I  not  say 
that  a  characteristic  trait  of  my  fellow  citizens  has  been  greatly  misunderstood  in 
Europe?  Europeans  generally  suppose  that  the  people  of  the  United  States  is  a 
people  eminently  practical.  That  is  true;  but  it  is  only  one  half  of  the  truth; 
for  the  people  of  the  United  States  are  not  only  practical;  they  are  still  more 
devoted  to  the  ideal. 

There  is  no  greater  error,  when  one  regards  the  United  States,  or  when  one 
deals  with  it,  than  to  suppose  that  its  citizens  are  guided  solely  by  material 
interests.  Our  own  Civil  War  shows  that  the  ideal  of  maintaining  the  Union 
of  the  States  led  us  into  conflict  which  cost  the  sacrifice  of  nearly  one  million 
men  and  of  nearly  ten  thousand  millions  of  dollars. 

I  say  this  not  from  vanity,  but  to  show  that  Americans  are  not  merely  prac- 
tical people,  but  are  idealists  also  as  regards  the  question  of  the  inviolability  of 
property  on  the  sea ;  this  is  not  merely  a  question  of  interest  for  us ;  it  is  a 
question  of  right,  of  justice,  of  progress  for  the  whole  world,  and  so  my  fellow 
countrymen  feel  it  to  be. 

In  the  name,  then,  of  the  delegation  of  the  United  States,  I  support  the  motion 
to  refer  the  whole  question  to  a  future  conference.  I  do  so  with  regret,  but  in 
view  of  the  fact  that  the  other  interests  of  the  nations  here  represented  demand  it. 

And  in  doing  so  permit  me,  in  the  name  of  the  nation  which  I  represent,  to 
commend  the  consideration  of  this  subject  to  all  those  present  in  this  Conference, 
and  especially  to  the  eminent  lawyers,  to  the  masters  in  the  science  of  international 
law,  to  the  statesmen  and  diplomatists  of  the  different  nations,  in  the  hope  that  this 
question  may  be  contained  in  the  program  of  the  next  Conference  which  shall  be 
assembled :  the  solution  of  this  question,  in  the  sense  I  have  indicated,  will  be  an 
honor  to  all  those  who  have  participated  in  it,  and  will  be  a  lasting  benefit  to  the 
interested  nations.     (Applause.) 

At  the  request  of  Mr.  Rahusen  it  is  decided  that  the  address  of  His  Excellency 
Mr.  White  shall  be  inserted  in  extenso  in  the  minutes  of  this  meeting. 

His  Excellency  Count  Nigra  supports  the  proposal  of  Mr.  Martens.  He 
has  to  state  that  the  Italian  Government  has  not  limited  itself  to  proclaiming 
its  respect  for  private  property  on  sea  but  has  sanctioned  the  principle  in  its  laws. 
He  recalls  particularly  an  article  of  the  treaty  of  commerce  betwen  Italy  and  the 
United  States  which  stipulates,  under  the  proviso  of  reciprocity,  the  recognition 
of  the  inviolability  of  such  property.  He  asks  that  official  notice  be  taken  of  this 
declaration. 

The  President  directs  that  the  declaration  of  Count  Nigra  be  recorded  and 
consults  the  Conference  on  the  adoption  of  the  vocii  proposed  by  the  Commission. 

His  Excellency  Sir  Julian  Pauncefote  renews  the  declaration  that  he  made 
regarding  the  second  vceu  and  says  that  without  instructions  from  his  Govern- 
ment he  is  obliged  to  abstain  from  voting. 

Mr.  Bourgeois  makes  the  same  declaration. 

The  President  has  these  declarations  recorded  and  states  that  the  vceu  is 
adopted. 

The  President  says  that  the  committee  appointed  in  the  last  plenary  meeting 
to  draft  the  Final  Act  of  the  Conference  and  the  Conventions  attached  thereto 


50  PLENARY  CONFERENCE 

has  begun  its  work.  Since  then,  several  delegates  have  expressed  the  desire  to 
see  the  composition  of  the  committee  completed  by  the  addition  of  two 
[34]  new  members.  The  President  does  not  see,  for  his  part,  any  incon- 
venience in  this  measure  thus  limited,  and  he  consequently  asks  the  meet- 
ing to  ratify  the  appointment  of  Messrs.  Merey  von  Kapos-Mere,  delegate 
of  Austria-Hungary,  and  Seth  Low,  delegate  of  the  United  States,  as  members 
of  the  committee.     (Adopted.) 

The  meeting  adjourns  at  3 :  30  o'clock. 


Annex  I  to  the  Minutes  of  the  Fifth  Meeting,  July  5 
REPORT  TO  THE  CONFERENCE  ^ 

To  the  second  subcommission  was  assigned  for  study  the  subject,  "  Revision 
of  the  Declaration  concerning  the  laws  and  customs  of  war  elaborated  in  1874  by 
the  Conference  of  Brussels  but  not  ratified  up  to  the  present  date."  This  is  the 
seventh  of  the  subjects  for  discussion  enumerated  in  the  circular  of  his  Excellency 
Count  Mouravieff,  dated  December  30,  1898  (old  style). 

It  is  proper  at  the  outset  to  define  more  exactly  this  subject  by  recalling  that 
it  is  very  clearly  seen  from  the  entire  record  of  the  Conference  of  Bnissels  that 
that  Conference  was  concerned  with  the  laws  and  customs  of  war  on  land  only. 
Consequently,  our  subcommission  has  been  constantly  governed  by  the  idea  that 
its  own  competence  was  limited  to  a  similar  extent.  It  was  for  this  reason  that 
the  subcommission  in  its  meeting  of  June  first  merely  placed  on  record  the  proposi- 
tion of  Captain  Crozier,  a  delegate  of  the  United  States  of  America,  looking  to 
the  extension  of  the  rules  with  respect  to  immunity  of  private  property  on  land 
over  like  property  at  sea.  For  the  same  reason  the  subcommission  also  preferred 
to  leave  to  the  Commission  the  solution  of  the  particular  question  whether  the 
rules  regarding  bombardments  are  to  be  applied  in  cases  where  ships  at  sea  direct 
their  fire  towards  points  on  the  coast. 

The  first  care  of  the  subcommission  was  to  determine  the  method  of  its 
deliberations.  For  the  basis  of  its  discussions  the  text  of  the  articles  of  the 
Declaration  of  the  Brussels  Conference  of  1874  was  taken,  but  in  a  somewhat 
different  order.  The  order  of  the  various  questions  was  immediately  settled  as 
follows  in  the  meeting  of  May  25  : 

1.  "Prisoners  of  war"  (Articles  23  and  34). 

2.  "  Capitulations  "  and  "  Armistices  "  (Articles  46  to  52). 

3.  "  Parlementaires  "  (Articles  43  to  44). 

4.  "  Military  power  with  respect  to  private  individuals  "  and  "  Con- 
tributions and  requisitions  "  (Articles  36  to  42). 

5.  Articles  35  and  56  relating  to  the  Geneva  Convention, 

6.  "  Spies  "  (Articles  19  to  22). 

*  [This  report  is  identical  with  the  report  (pt.  iii,  post,  p.  415)  presented  by  the  second 
subcommission  of  the  Second  Commission,  and  adopted  by  the  Commission  on  July  5,  1899 
(post,  p.  409)]. 


FIFTH  MEETING,  JULY  5,  1899:  ANNEXES  51 

7.  "  Means  of  injuring  the  enemy  "  and  "  Sieges  and  bombardments  " 
(Articles  12  to  18). 

8.  "  Internment  of  belligerents  and  care  of  the  wounded  in  neutral 
countries"  (Articles  53  to  55). 

9.  "Military  authority  over  hostile  territory"  (Articles  1  to  8). 

10.  "  Those  who  are  to  be  recognized  as  belligerents ;  combatants  and 
non-combatants  "  (Articles  9  to  11). 

This  order  of  discussion,  intended  to  reserve  the  most  delicate  questions  for 
the  end,  was  adhered  to  by  the  subcommission  on  the  first  reading,  except  that 
after  deliberating  on  the  text  of  Articles  36  to  39  of  the  Brussels  draft  concerning 
the  military  power  with  respect  to  private  individuals,  the  subcommission  passed 
at  once  to  the  next  numbered  subject,  the  fifth,  reserving  Articles  40  to  42  on 
contributions  and  requisitions  for  examination  at  the  same  time  with  the  chapter 
on  military  authority  over  hostile  territory  (No.  9  above  and  Articles  1  to  8). 

Afterwards,  however,  on  the  advice  of  the  drafting  committee  appointed  in 
the  meeting  of  June  12,^  the  subcommission  adopted  a  draft  in  which  the  articles 
are  arranged  in  four  sections,  the  first  two  sections  being  divided  into  chapters  and 
the  whole  arranged  in  a  new  order  that  seemed  more  methodical.  This 
[35]  draft  is  the  one  submitted  to  the  Second  Commission,  and  here  annexed 
under  the  title,  "  Draft  of  a  Declaration  concerning  the  laws  and  customs 
of  war  on  land."  In  order  to  establish  constant  correlation  between  that  text 
and  the  present  report,  the  report  is  divided  into  sections  and  chapters  cor- 
responding to  those  of  the  draft  declaration. 

Before  passing  to  the  detailed  examination  of  the  draft  now  submitted,  the 
Commission's  attention  should  be  called  to  several  communications,  more  or  less 
general  in  their  bearing,  that  have  been  made  to  the  subcommission  in  the  course 
of  its  discussions. 

At  the  beginning  of  the  meeting  held  on  June  10,  General  Sir  John  Ardagh, 
technical  delegate  of  the  British  Government,  read  a  statement  to  the  effect  that 
in  his  personal  opinion-,  which  could  not  commit  his  Government,  it  would  be  a 
mistake  to  ask  "  that  the  revision  of  the  Declaration  of  Brussels  should  result  in 
an  international  Convention." 

Without  seeking  [said  Sir  John  Ardagh]  to  know  the  motives  to  which 
may  be  attributed  the  non-adoption  of  the  Brussels  Declaration,  it  is  per- 
missible to  suppose  that  the  same  difficulties  may  arise  at  the  conclusion  of 
our  labors  at  The  Hague. 

In  order  to  brush  them  aside  and  to  escape  the  unfruitful  results  of  the 
Brussels  Conference  ...  we  would  better  accept  the  Declaration  only  as 
a  general  basis  for  instructions  to  our  troops  on  the  laws  and  customs  of 
war,  without  any  pledge  to  accept  all  the  articles  as  voted  by  the  majority. 

According  to  the  opinion  of  Sir  John  Ardagh  all  Governments  would  thus, 
even  though  adhering  to  the  Declaration,  retain  "  full  liberty  to  accept  or  modify 
the  articles  "  of  the  Declaration. 

*  This  drafting  committee  was  formed  of  Messrs.  Beldtman,  Colonel  X  Court,  Colonel 
GiLiNSKY,  Colonel  Gross  von  Schvvarzhoff,  Lammasch,  Renault,  General  Zuccari,  and 
RoLiN,  the  latter  in  the  capacity  of  reporter.  Except  on  a  special  occasion  the  committee 
was  presided  over  by  Mr.  Martens,  president  of  the  Commission  and  of  the  subcommission. 
As  Mr.  Renault  was  not  able  to  be  present  at  the  last  meetings,  his  place  was  taken  by 
General  Mounier. 


52  PLENARY  CONFERENCE 

This  communication  of  the  technical  delegate  of  Great  Britain  led  Mr. 
Martens  to  add  some  information  regarding  the  view  which  the  Imperial  Govern- 
ment of  Russia  takes  on  the  question. 

The  object  of  the  Imperial  Government  [said  Mr.  Martens]  has 
steadily  been  the  same,  namely,  to  see  that  the  Declaration  of  Brussels, 
revised  in  so  far  as  this  Conference  may  deem  it  necessary,  shall  stand  as 
a  solid  basis  for  the  instructions  in  case  of  war  which  the  Governments  shall 
issue  to  their  armies  on  land.  Without  doubt,  to  the  end  that  this  basis  may 
be  firmly  established,  it  is  necessary  to  have  a  treaty  engagement  similar  to 
that  of  the  Declaration  of  St.  Petersburg  in  1868.  It  would  be  necessary 
that  the  signatory  and  acceding  Powers  should  declare  in  a  solemn  article 
that  they  have  reached  an  understanding  as  to  uniform  rules,  to  be  carried 
over  into  such  instructions.  This  is  the  only  way  of  obtaining  an  obligation 
binding  on  the  signatory  Powers.  It  is  ivell  understood  that  the  Declaration 
of  Brussels  will  have  no  binding  force  except  for  the  contracting  or  acceding 
States. 

From  this  last  sentence  it  is  seen  that  according  to  the  views  of  the  Russian 
Government  there  could  be  no  other  course  than  to  conclude  a  convention  pro- 
viding that  the  adopted  rules  should  not  be  obligatory  as  such  except  upon  the 
adhering  States.  The  rules  would  even  cease  to  be  applicable  in  a  war  between 
adhering  States  if  one  of  them  should  accept  an  ally  who  had  not  adhered  to  the 
Convention. 

The  delegate  of  Russia  enforced  this  view  by  comparing  the  work  to  be  done 
with  the  formation  of  a  "  mutual  insurance  association  against  the  abuse  of  force 
in  time  of  war,"  an  association  which  States  should  be  free  to  enter  or  not,  but 
which  must  have  its  own  by-laws  obligatory  upon  the  members  among  themselves. 

In  replying  to  another  objection  that  was  made  and  to  which  we  shall  revert 
later,  Mr.  Martens  added  that  by  agreeing  to  establish  a  "  mutual  insurance 
association  against  the  abuse  of  force  in  time  of  war  "  for  the  purpose  of  pro- 
tecting the  interests  of  populations  against  the  greatest  of  disasters,  we  by  no 
means  sanction  these  disasters,  we  merely  recognize  their  existence;  just  as 
companies  that  insure  against  fire,  hail,  or  other  calamities,  merely  state  existing 
dangers. 

The  last  part  of  Mr.  Martens'  speech  was  in  answer  to  a  fundamental 
objection  advanced  by  his  Excellency  Mr.  Beernaert,  the  first  delegate  of  Bel- 
gium, in  an  address  delivered  in  the  meeting  of  June  6. 

It  is  correct  to  say  that  the  address  of  Mr.  Beernaert  was  especially  devoted 
to  a  consideration  of  chapters  i,  ii,  and  ix  of  the  Declaration  of  Brussels  relative 
to  the  occupation  of  hostile  territory,  the  definition  of  belligerents  and  the  pro- 
visions regarding  requisition  in  kind  or  of  money.  Mr.  Beernaert,  apropos  of 
certain  clauses  in  these  chapters,  put  the  question  whether  it  is  wise  "  in  advance 
of  war  and  for  the  case  of  war,  expressly  to  legalize  rights  of  a  victor  over  the 
vanquished,  and  thus  organize  a  regime  of  defeat."  He  thought  it  best  to 
adopt  no  provision  except  such  as  would  admit  the  fact  without  recognizing  a 
right  in  the  victor,  and  would  carry  a  pledge  on  the  part  of  the  latter  to  be 

moderate. 
[36]  As  a  matter  of  fact,  these  remarks  of  the  first  delegate  of  Belgium  had 
a  very  general  bearing  for  they  are  more  or  less  applicable  to  every  part 
of  the  Declaration  concerning  the  laws  and  customs  of  war.     Mr.  Martens  in 


FIFTH  MEETING,  JULY  5,  1899:  ANNEXES  53 

reply  energetically  insisted  upon  the  necessity  of  not  abandoning  the  vital  interests 
of  peaceable  and  unarmed  populations  "  to  the  hazards  of  warfare  and  inter- 
national law." 

The  question  thus  raised  was  really  whether  the  fear  of  appearing  by  an 
international  regulation  to  legalize  as  a  right  the  actual  power  exercised  through 
force  of  arms  should  be  a  good  reason  for  abandoning  the  invaluable  advantage 
in  a  limitation  of  this  power.  Besides,  no  member  of  the  subcommission  had  any 
idea  that  the  legal  authority  in  an  invaded  country  should  in  advance  give  anything 
like  sanction  to  force  employed  by  an  invading  and  occupying  army.  On  the 
contrary,  the  adoption  of  precise  rules  tending  to  limit  the  exercise  of  this  power 
appeared  to  be  an  obvious  necessity  in  the  real  interests  of  all  peoples  whom  the 
fortune  of  war  might  in  turn  betray. 

The  subcommission  took  into  account  the  views  of  Mr.  Beernaert  by 
adopting  as  its  own  a  declaration  which  Mr.  Martens  read  in  the  meeting  of 
June  20.  The  complete  text  of  this  declaration  will  be  found  below  in  the 
commentary  upon  Articles  1  and  2  (formerly  9  and  10)  to  which  they  particularly 
relate.  It  should  be  remembered  that,  as  the  subcommission  desired,  this  docu- 
ment is  to  be  given  a  place  in  the  records  of  the  Conference.  As  a  consequence, 
the  draft  is  not  to  be  considered  as  intended  to  regulate  all  cases  occurring  in 
practice ;  the  law  of  nations  still  has  its  field.  Furthermore,  it  has  been  formally 
said  that  none  of  the  articles  of  the  draft  can  be  considered  as  entailing  on  the 
part  of  adhering  States  the  recognition  of  any  right  whatever  in  derogation  of 
the  sovereign  rights  of  each  of  them,  and  that  adhesion  to  the  regulations  will 
simply  imply  for  each  State  the  acceptance  of  a  set  of  legal  rules  restricting  the 
exercise  of  the  power  that  it  may  through  the  fortune  of  war  wield  over  foreign 
territory  or  subjects. 

There  still  remains  to  be  brought  to  the  notice  of  the  Commission  a  com- 
munication of  a  general  nature.  At  the  meeting  of  June  3  his  Excellency  Mr. 
Eyschen,  the  delegate  of  the  Grand  Duchy  of  Luxemburg,  called  the  attention 
of  the  subcommission  to  the  importance  of  a  determination  of  the  rights  and 
duties  of  neutral  States.  The  subcommission  was  of  the  opinion  that  it  should 
confine  itself  to  examining  the  questions  falling  within  the  terms  of  the  Declara- 
tion of  Brussels,  but  it  recommended  the  passage  of  the  resolution  expressing  the 
hope  "  that  the  question  of  regulating  the  rights  and  duties  of  neutral  States  may 
be  inserted  in  the  program  of  a  Conference  in  the  near  future." 

We  now  pass  to  an  examination  of  the  text  of  the  draft  Declaration,  which  is 
divided  into  four  sections. 


SECTION  I.— Belligerents 

Chapter  I. — The  qualifications  of  belligerents 
(Articles  1  to  3) 

The  two  first  articles  of  this  chapter  (Articles  1  and  2)  were  voted  unani- 
mously and  are  word  for  word  the  same  as  Articles  9  and  10  of  the  Brussels 
Declaration,  with  the  exception  of  a  purely  formal  addition  to  the  final  paragraph 


54  PLENARY  CONFERENCE 

of  the  first  article  made  on  the  second  reading,  in  order  to  include  volunteer  corps 
as  well  as  militia  within  the  term  army. 

When  these  articles  were  first  submitted  to  discussion,  Mr.  Martens  read  the 
declaration  already  spoken  of  and  the  subcommission  immediately  adopted  it  for 
submission  to  the  Conference.     Its  text  follows: 

The  Conference  is  unanimous  in  thinking  that  it  is  extremely  desirable 
that  the  usages  of  war  should  be  defined  and  regulated.  In  this  spirit  it  has 
adopted  a  great  number  of  provisions  which  have  for  their  object  the  deter- 
mination of  the  rights  and  of  the  duties  of  belligerents  and  populations  and 
for  their  end  a  softening  of  the  evils  of  war  so  far  as  military  necessities 
permit.  It  has  not,  however,  been  possible  to  agree  forthwith  on  provisions 
embracing  all  the  cases  which  occur  in  practice. 

On  the  other  hand,  it  could  not  be  intended  by  the  Conference  that  the 
cases  not  provided  for  should,  for  want  of  a  written  provision,  be  left  to 
the  arbitrary  judgment  of  the  military  commanders. 
[37]   Until  a  perfectly  complete  code  of  the  laws  of  war  is  issued,  the  Con- 
ference  things    it    right    to    declare    that   in    cases    not    included    in    the 
present  arrangement,  populations  and  belligerents  remain  under  the  protection 
and  empire  of  the  principles  of  international  law,  as  they  result  from  the 
usages  established  between  civilized  nations,  from  the  laws  of  humanity,  and 
the  requirements  of  the  public  conscience. 

It  is  in  this  sense  especially  that  Articles  9  and  10  adopted  by  the 
Conference  must  be  understood. 

The  senior  delegate  from  Belgium,  Mr.  Beernaert,  who  had  previously 
objected  to  the  adoption  of  Articles  9  and  10  (1  and  2  of  the  new  draft), 
immediately  announced  that  he  could  because  of  this  declaration  vote  for  them. 

Unanimity  was  thus  obtained  on  those  very  important  and  delicate  provisions 
relating  to  the  fixing  of  the  qualifications  of  belligerents. 

The  third  and  last  article  of  this  chapter,  which  is  identical  except  as  to  details 
of  form  with  Article  11  in  the  Brussels  draft,  expressly  says  that  non-combatants 
forming  part  of  an  army  should  also  be  deemed  belligerents,  and  that  both  com- 
batants and  non-combatants,  that  is  to  say  all  belligerents,  have  a  right  in  case  of 
capture  by  the  enemy  to  be  treated  as  prisoners  of  war. 

There  was  some  thought  of  transferring  this  article,  or  at  least  its  last 
sentence,  to  the  chapter  on  prisoners  of  war.  But  in  the  end  it  appeared  useful, 
after  having  defined  the  conditions  of  belligerency,  to  state  at  once  this  essential 
right  that  a  belligerent  possesses  in  case  of  capture  by  the  enemy,  to  be  treated  as 
a  prisoner  of  war.  And  besides,  this  gives  us  a  very  natural  transition  to  Chapter 
II,  which  follows  immediately  and  fixes  the  condition  of  prisoners  of  war. 

Before  the  above  declaration,  adopted  on  the  motion  of  Mr.  Martens,  was 
communicated  to  the  subcomission  General  Sir  John  Ardagh,  technical  delegate 
of  Great  Britain,  proposed  to  add  at  the  end  of  the  first  chapter  the  following 
provision : 

Nothing  in  this  chapter  shall  be  considered  as  tending  to  diminish  or 
suppress  the  right  which  belongs  to  the  population  of  an  invaded  country  to 
patriotically  oppose  the  most  energetic  resistance  to  the  invaders  by  every 
legitimate  means. 

From  a  reading  of  the  minutes  of  the  meeting  of  June  20,  it  would  seem  that 
most  of  the  members  of  the  subcommission  were  of  opinion  that  the  rule  thus 


FIFTH  MEETING,  JULY  5,  1899:  ANNEXES  55 

formulated  added  nothing  to  the  declaration  which  Mr,  Martens  had  read  at  the 
opening  of  that  meeting.  The  delegation  of  Switzerland,  nevertheless,  appeared 
to  attach  great  importance  to  this  additional  article  and  went  so  far  as  to  suggest 
that  its  adhesion  to  Articles  1  and  2  (Brussels  9  and  10)  might  not  be  given  if 
the  proposal  of  Sir  John  Ardagh  was  not  adopted.  Mr.  Kunzli  spoke  to  that 
effect.  On  the  other  hand,  the  technical  delegate  of  Germany,  Colonel  Gross 
VON  ScHWARZHOFF,  emphatically  asserted  that  Article  9  of  Brussels  (now  the 
first  article)  makes  recognition  of  belligerent  status  depend  only  on  conditions 
that  are  very  easy  to  fulfil;  he  said  that  there  was  consequently  in  his  view  no 
need  of  voting  for  Article  10  (now  Article  2),  which  also  recognizes  as  bel- 
ligerents the  population  of  territory  that  is  not  yet  occupied  under  the  sole 
condition  that  it  respects  the  laws  of  war ;  but  that  he  had  nevertheless  voted  for 
that  article  in  a  spirit  of  conciliation.  "  At  this  point,  however,"  said  the  German 
delegate  most  emphatically,  "  my  concessions  cease ;  it  is  absolutely  impossible  for 
me  to  go  one  step  further  and  follow  those  who  declare  for  an  absolutely  unlimited 
right  of  defense." 

At  the  end  of  the  debate  and  in  consideration  of  the  declaration  adopted  on 
motion  of  Mr.  Martens,  Sir  John  Ardagh  withdrew  his  motion,  for  the  sake 
of  harmony. 

Chapter  II. — Prisoners  of  war 
(Articles  4  to  20) 

The  chapter  on  prisoners  of  war  in  the  Brussels  Declaration  of  1874  (Articles 
23-34)  began  with  a  definition  forming  the  first  paragraph  of  Article  23  and 
couched  in  the  following  terms :  "  Prisoners  of  war  are  lawful  and  disarmed 
enemies."  This  definition  was,  so  to  speak,  the  residuum  of  another  and  much 
longer  definition  in  Article  23  of  the  first  draft  submitted  to  the  Brussels  Con- 
ference by  the  Imperial  Russian  Government.  Considering  the  rather  vague 
character  of  these  definitions  and  the  difficulty  of  finding  any  other  that  is  more 
complete  and  more  precise,  the  subcommission  agreed  to  leave  out  the  definition 
and  to  confine  itself  in  this  chapter  to  saying  what  shall  be  the  treatment  of 
prisoners  of  war. 

It  is  for  these  reasons  that  Article  4,  which  is  the  first  one  under  this  chapter 
and  corresponds  to  Article  23  of  the  Brussels  project,  begins  at  once 
[38]  with  these  words :  "  Prisoners  of  war  are  in  the  power  of  the  hostile 
Government,  etc." 

The  paragraph  relating  to  acts  of  insubordination  has  also  been  omitted  in 
this  article,  but  it  is  to  be  found  farther  on  in  Article  8,  where  it  seems  better 
placed. 

Most  of  the  other  provisions  adopted  at  Brussels  concerning  this  subject  of 
the  treatment  of  prisoners  of  war  have  been  retained  by  the  subcommission  with 
very  slight  changes,  an  explanation  of  which  may  be  found  in  the  minutes  of  the 
meetings  of  May  27  and  30. 

Article  5,  respecting  internment  of  prisoners,  is  an  exact  copy  of  Article  24. 

Article  6  combines  the  provisions  of  Articles  25  and  26  of  Brussels  in  a 
slightly  different  wording  proposed  by  Mr.  Beernaert. 

Article  7  is  almost  the  same  as  the  old  Article  27,  save  that  it  regulates  the 
treatment  of  prisoners  as  to  quarters  as  well  as  to  food  and  clothing. 


56  PLENARY  CONFERENCE 

Article  8,  respecting  the  discipline  of  prisoners  of  war,  corresponds  to  Article 
28  of  the  Brussels  project,  but  with  a  few  changes  other  than  of  form,  especially 
as  regards  escapes  by  prisoners.     An  analysis  of  these  changes  is  given  below. 

Article  9  repeats  literally  Article  29  on  the  declaration  of  name  and  rank. 

Article  30  of  the  Brussels  project,  respecting  the  exchange  of  prisoners,  has 
been  omitted  as  useless,  for  the  reason  that  the  question  of  exchange  cannot  be 
made  the  subject  of  a  general  rule,  inasmuch  as  an  exchange  can  of  course  always 
result  from  an  agreement  between  the  belligerents. 

Articles  10,  1 1  and  12  concerning  liberation  on  parole  are,  except  as  to  a  few 
details  of  wording,  the  same  as  Articles  31,  32  and  33  of  the  Declaration  of 
Brussels. 

But  the  new  Article  13  respecting  persons  to  be  classed  with  prisoners  of 
war  differs  considerably  both  in  form  and  substance  from  Article  34  of  the 
Brussels  project. 

Finally  we  come  to  Articles  14  to  20  which  are  all  new  and  have  been  adopted 
on  the  motion  of  Mr.  Beernaert. 

On  the  whole  then,  it  is  proper  to  furnish  special  explanations  with  regard 
to  Article  8  (old  28),  Article  13  (old  34),  and  the  new  Articles  11  to  17. 

As  has  just  been  said,  a  long  discussion  took  place  on  Article  28,  now  Article 
8,  especially  on  the  subject  of  the  escape  of  prisoners  of  war.  Finally  it  was 
agreed,  as  it  had  been  at  Brussels  in  1874,  that  an  attempt  at  escape  should  not 
go  entirely  unpunished,  but  that  it  is  desirable  to  limit  the  degree  of  punishment 
which  it  may  entail,  especially  to  forestall  the  temptation  with  the  enemy  to  regard 
the  act  as  similar  to  desertion  and  therefore  punishable  with  death.  Consequently 
it  was  decided  that  "  escaped  prisoners  who  are  retaken  before  being  able  to  rejoin 
their  army  or  before  having  left  the  territory  occupied  by  the  army  that  captured 
them  are  liable  to  disciplinary  punishment"  Nevertheless,  it  was  agreed  in  the 
course  of  the  debate  that  this  restriction  has  no  application  to  cases  where  the 
escape  of  prisoners  of  war  is  accompanied  by  special  circumstances  amounting,  for 
example,  to  a  plot,  a  rebellion,  or  a  riot.  In  such  cases,  as  General  von  Voigts- 
Rhetz  remarked  at  Brussels  in  1874,^  the  prisoners  are  punishable  under  the  first 
part  of  the  same  article  which  says  that  they  are  "  subject  to  the  laws,  regulations, 
and  orders  in  force  in  the  army  of  the  State  in  whose  power  they  are  " ;  and  it 
is  necessary  further  to  supplement  this  provision  with  the  one  which  has  been 
taken  from  the  old  Article  23  and  added  to  Article  8,  laying  down,  on  the  subject 
of  prisoners,  that  "  any  act  of  insubordination  justifies  the  adoption  towards  them 
of  such  measures  of  severity  as  may  be  necessary." 

Article  28  of  the  Brussels  project  provided  particularly  that  arms  may  be 
used  after  summoning,  against  a  prisoner  of  war  attempting  to  escape.  This 
provision  was  struck  out  by  the  subcommission.  In  doing  so,  the  subcommission 
did  not  deny  the  right  to  fire  on  an  escaping  prisoner  of  war  if  military  regulations 
so  provide,  but  it  seemed  that  no  useful  purpose  would  be  served  in  formally 
countenancing  this  extreme  measure  in  the  body  of  these  articles. 

Finally  the  subcommission  retained,  with  some  hesitation,  the  last  paragraph 
of  the  article,  by  the  terms  of  which  "  prisoners  who,  after  succeeding  in  escaping, 
are  again  taken  prisoners,  are  not  liable  to  any  punishment  for  their  previous 
flight."  The  subcommission  was  influenced  by  the  consideration  that  when  a 
prisoner  of  war  has  regained  his  liberty  his  situation  in  fact  and  in  law  is  in 

*  [Minutes  of  the  meeting  of  August  6,  1874.] 


FIFTH  MEETING,  JULY  5,  1899:  ANNEXES  57 

all  respects  the  same  as  if  he  had  never  been  taken  prisoner.     No  actual  penalty 
should  therefore  apply  to  him  on  account  of  the  anterior  fact. 

Article  34,  now  Article  13  of  the  draft  of  the  subcommission,  has  also  under- 
gone considerable  change.  The  old  wording  was  especially  wanting  in 
[39]  clearness  as  it  seemed  to  say  that  the  persons  meant  who  accompany 
the  army  without  being  a  part  of  it  (such  as  newspaper  correspondents, 
sutlers,  contractors,  etc.)  shall  be  made  prisoners  if  they  are  provided  with  regular 
permits.  Accordingly  it  would  be  literally  sufficient  in  order  to  be  left  free  not 
to  have  the  regular  permit.  Such  certainly  is  not  the  meaning  of  this  provision. 
The  subcommission  consequently  adopted  at  the  suggestion  of  the  reporter  a  more 
precise  wording  which  closely  follows  the  text  of  Article  22  of  the  manual  of 
the  laws  of  war  on  land  of  the  Institute  of  International  Law.  This  text  keeps 
in  sight  the  fact  that  these  persons  cannot  really  be  considered  as  prisoners  of 
war  at  all.  But  it  may  be  necessary  to  detain  them  either  temporarily  or  until 
the  end  of  the  war  and  in  this  case  it  will  certainly  be  advantageous  for  them  to 
be  treated  like  prisoners  of  war.  Nevertheless,  they  can  depend  upon  obtaining 
this  advantage  only  if  they  are  "  in  possession  of  a  certificate  from  the  military 
authorities  of  the  army  they  were  accompanying." 

There  remain  to  be  said  a  few  words  about  the  last  seven  Articles  (14-20) 
of  this  chapter,  which  were  added  to  it  on  the  motion  of  his  Excellency  Mr. 
Beernaert,  the  senior  delegate  of  Belgium. 

Mr.  Beernaert  called  attention  to  the  fact  that  these  proposals  are  by  no 
means  new,  having  been  first  suggested  by  Mr.  Romberg-Nisard,  who  was 
actively  engaged  in  relieving  the  sufferings  of  the  victims  of  the  war  of  1870,  and 
never  ceased  to  agitate  for  better  treatment  of  the  wounded  and  prisoners  in  wars 
of  the  future. 

These  additional  provisions  provide,  in  the  first  place,  for  making  general 
the  organization  of  information  bureaus  concerning  prisoners,  similar  to  the  one 
instituted  in  Prussia  in  1866  which  rendered  such  great  service  during  the  war 
of  1870-1.  This  is  the  object  of  the  first  of  these  articles  (Article  14).  The 
second  article  (Article  15)  provides  that  certain  facilities  shall  be  given  to  such 
relief  societies  for  prisoners  of  war  as  are  properly  constituted.  The  third  article 
(Article  16)  grants  free  postage  and  other  advantages  to  the  information  bureaus 
and  in  general  for  shipments  made  to  prisoners.  The  fourth  article  (Article  17) 
has  for  its  object  to  favor  payment  of  salary  to  prisoners  who  are  officers.  The 
fifth  and  sixth  articles  (Articles  18  and  19)  secure  to  prisoners  free  exercise  of 
their  religion,  grant  them  facilities  for  making  wills,  and  deal  with  death  certifi- 
cates and  burials.  Finally,  the  last  of  these  new  articles  (Article  20)  expressly 
stipulates  that  after  the  conclusion  of  peace  "  the  repatriation  of  prisoners  of  war 
shall  be  carried  out  as  quickly  as  possible."  Immediate  absolute  liberation  is 
indeed  not  possible,  for  it  would  be  sure  to  lead  to  disorder. 

This  Article  20  was  to  have  a  second  paragraph  saying  that  no  prisoner  of 
war  can  be  detained  nor  his  liberation  postponed  on  account  of  sentences  passed 
upon  him  or  of  acts  occurring  since  his  capture,  crimes  or  offenses  at  common  law 
excepted.  At  the  suggestion  of  Colonel  Gross  von  Schwarzhoff  this  provision 
was  omitted  by  common  accord  in  consideration  of  the  requirements  of  discipline 
which  must  be  maintained  and  enforced  with  sufficient  penalties  up  to  the  very  last 
day  of  the  captivity  of  prisoners  of  war. 

The  only  one  of  these  additional  provisions  due  to  the  initiative  of  the  senior 


58  PLENARY  CONFERENCE 

delegate  of  Belgium  that  has  given  rise  to  discussion  is  the  third  (Article  16), 
relative  to  postal,  customs  and  other  privileges.  But  through  the  hearty  support 
of  Mr.  Lammasch,  the  technical  delegate  of  Austria-Hungary,  and  General  den 
Beer  Poortugael,  the  second  delegate  of  the  Netherlands,  this  article  was  also 
adopted  unanimously. 

It  should  be  observed  that  postal  and  other  conventions  will  have  to  be 
modified  to  conform  to  this  provision.  As  to  the  customs  franking  privilege,  it 
obviously  applies  only  to  articles  for  the  personal  use  of  the  prisoners. 

It  may  be  interesting  to  state  here  that  these  Articles  14  to  20  even  more 
than  attain  the  end  that  the  Belgian  delegation  had  in  view  when,  in  1874,  at  the 
Brussels  Conference,  it  proposed  through  the  medium  of  Baron  Lambermont  six 
articles  relating  to  relief  societies  for  prisoners  of  war.  These  articles  were  then 
the  subject  of  a  favorable  order  of  the  day,  but  they  were  not  embodied  in  the 
project  of  the  Declaration  of  Brussels. 

Chapter  III. — The  sick  and  infounded 
(Article  21) 

The  sole  article  in  this  chapter  is  a  literal  copy  of  Article  35  of  the  Brussels 
project.  It  was  adopted  unanimously  and  without  debate.  As  the  chairman  of 
the  subcommission  remarked,  we  confine  ourselves  to  stating  that  the  rules  of  the 
Geneva  Convention  must  be  observed  between  belligerents.     Moreover,  the  last 

part  of  the  article  anticipates  a  future  modification  of  that  Convention. 
[40J  As  you  know,  it  is  stated  elsewhere,  in  Article  60  (old  Article  56).  that 

the  Geneva  Convention  likewise  applies  to  the  sick  and  wounded  interned 
in  neutral  territory. 


SECTION  II.— Hostilities 

Chapter  I. — Means  of  injuring  the  enemy,  sieges,  and  bombardments 

(Articles  22  to  28) 

This  chapter  combines  under  one  heading  two  distinct  chapters  of  the 
Declaration  of  Brussels,  of  which  the  first  was  entitled  "  Means  of  injuring 
the  enemy"  (Articles  12  to  14),  and  the  second  "Sieges  and  bombardments" 
(Articles  15  to  18). 

The  union  of  these  chapters  in  a  single  one,  as  proposed  by  the  drafting 
committee  and  approved  on  second  reading  by  the  subcommission,  had  for  its 
object  to  make  it  clearly  appear  that  the  articles  respecting  means  of  doing  injury 
are  also  applicable  to  sieges  and  bombardments. 

The  new  Articles  22,  23,  and  24  correspond  exactly,  aside  from  some  changes 
of  wording,  to  Articles  12,  13,  and  14  of  the  Declaration  of  Brussels. 

Article  23  begins  with  the  words :  "  In  addition  to  the,  prohibitions  provided 
by  special  conventions,  it  is  especially  forbidden.  ..."  These  special  conven- 
tions are  first  the  Declaration  of  St.  Petersburg  of  1868,  which  continues  in 
force,  and  then  all  those  of  like  nature  that  may  be  concluded,  especially  subse- 
quently to  the  Hague  Conference.    It  seemed  to  the  subcommission  that  the 


FIFTH  MEETING,  JULY  5,  1899:  ANNEXES  59 

general  formula  was  preferable  to  the  old  reading  which  mentioned  only  the 
Declaration  of  St.  Petersburg. 

Article  23  forbids,  under  letter  g,  any  destruction  or  seizure  of  the  enemy's 
property  not  demanded  by  the  necessities  of  war.  The  drafting  committee  had 
proposed  to  omit  this  clause  as  it  seemed  to  it  useless  in  view  of  the  provisions 
farther  on  prescribing  respect  for  private  property;  but  the  subcommission 
retained  it,  on  the  second  reading,  at  the  instance  of  Mr.  Beernaert,  for  the 
reason  that  the  chapter  under  consideration  deals  with  limiting  the  effects  of 
hostilities,  properly  so  called,  while  the  other  provisions  referred  to  treat  more 
particularly  of  occupation  of  hostile  territory. 

The  wording  of  Article  24  (old  14)  has  been  criticized.  Taken  literally  this 
article  might  indeed  be  taken  to  mean  that  every  ruse  of  war  and  every  method 
necessary  to  obtain  information  about  the  enemy  and  the  country  should  ipso  facto 
be  considered  "  permissible."  It  is  understood  that  such  is  by  no  means  the 
import  of  this  provision,  which  airns  only  to  say  that  ruses  of  war  and  methods 
of  obtaining  information  are  not  prohibited  as  such.  They  would  cease  to  be 
"  permissible "  in  case  of  infraction  of  a  recognized  imperative  rule  to  the 
contrary. 

The  Brussels  Article  14  particularly  cited  one  of  these  imperative  rules — 
that  which  forbids  compelling  the  population  of  an  occupied  territory  to  take  part 
in  military  operations  against  their  own  country  (Article  36  of  Brussels).  But 
there  are  many  others,  such,  for  example,  as  the  prohibition  against  the  improper 
use  of  a  flag  of  truce  (Article  23/).  There  are  even  some  that  are  not  expressly 
sanctioned  in  any  article  of  the  Declaration.  And,  under  these  conditions,  and 
not  being  able  to  recall  all  these  rules  with  regard  to  Article  24,  the  subcommission 
thought  it  was  better  to  mention  none  of  them,  believing  that  the  explanation  now 
made  would  be  sufficient  to  indicate  the  true  meaning  of  this  article. 

Articles  25,  26,  27,  and  28  are  almost  word  for  word  the  same  as  Articles  15 
to  18  of  the  Brussels  project,  the  slight  modifications  therein  being  purely  in 
expression. 

Respecting  the  prohibition  of  bombarding  towns,  villages,  dwellings,  or  build- 
ings which  are  not  defended  (Article  25),  it  is  proper  to  refer  to  an  observation 
made  by  Colonel  Gross  von  Schwarzhoff,  who  said  that  this  prohibition  cer- 
tainly ought  not  to  be  taken  to  prohibit  the  destruction  of  any  buildings  whatever 
and  by  any  means  when  military  operations  rendered  it  necessary.  This  remark 
met  with  no  objection  in  the  subcommission. 

As  has  been  indicated  at  the  beginning  of  this  report,  the  question  was  asked 
whether  the  last  articles  of  this  chapter  were  to  be  considered  as  applicable  to 
bombardment  of  a  place  on  the  coast  by  naval  forces.  General  den  Beer  Poor- 
TUGAEL,  delegate  of  the  Netherlands,  and  Mr.  Beernaert  maintained  the  affirma- 
tive. But,  on  motion  of  Colonel  Gilinsky,  technical  delegate  of  the  Russian 
Government,  the  examination  of  this  question  was  by  general  agreement  reserved 
for  the  Commission  in  plenary  session. 

[41]  Chapter  II. — Spies 

(Articles  29  to  31) 

The  three  articles  of  this  chapter  reproduce  almost  literally  the  wording  of 
Articles  19  to  22  of  the  Brussels  project.    Former  Articles  19  and  22  have,  on 


60  PLENARY  CONFERENCE 

the  motion  of  General  Mounier,  technical  delegate  of  the  French  Government, 
merely  been  combined  to  form  Article  29.  These  two  provisions  in  reality  deal 
with  a  single  idea,  which  is  to  determine  who  can  be  considered  and  treated  as  a 
spy,  and  to  specify  at  once,  merely  by  way  of  example,  some  special  cases  in  which 
a  person  cannot  be  considered  as  a  spy. 

With  respect  to  Article  30  (Article  20  of  Brussels)  it  has  been  remarked  that 
in  applying  the  penalty  the  requirement  of  a  previous  judgment  is,  in  espionage 
as  in  all  other  cases,  a  guaranty  that  is  always  indispensable,  and  the  new  phrasing 
was  adopted  with  the  purpose  of  saying  this  more  explicitly. 

It  results  from  Article  31  (Article  21  of  Brussels)  that  a  spy  not  taken  in 
the  act  but  falling  subsequently  into  the  hands  of  the  enemy  incurs  no  responsi- 
bility for  his  previous  acts  of  espionage.  This  special  immunity  is  in  harmony 
with  the  customs  of  warfare;  but  the  words  in  italics  have  been  added,  on  the 
second  reading,  to  show  clearly  that  this  immunity  has  reference  to  acts  of 
espionage  only  and  does  not  extend  to  other  oflfenses. 

Chapter  III. — Parlementaires 
(Articles  32  to  34) 

The  three  articles  composing  this  chapter  correspond  to  Articles  43,  44,  and 
45  of  the  Brussels  project. 

The  text  of  Article  32  differs  slightly  from  that  of  Article  43.  As  a  conse- 
quence the  parlementaire  may  be  accompanied  not  only  by  a  trumpeter,  bugler  or 
drummer,  and  by  a  flag-bearer,  but  also  by  an  interpreter.  It  is  also  a  conse- 
quence of  the  new  reading  that  he  may  do  without  one  or  more  of  these  attendants 
and  go  alone  carrying  the  white  flag  himself. 

Article  33,  with  the  exception  of  some  changes  in  form  adopted  on  the  first 
and  second  readings,  is  the  same  as  the  first  two  paragraphs  of  the  Brussels 
Article  44.  It  deals  with  the  right  that  every  belligerent  has  either  to  refuse  to 
receive  a  parlementaire,  or  to  take  the  measures  necessary  in  order  to  prevent  him 
from  profiting  by  his  mission  to  get  information,  or  finally  to  detain  him  in  case 
of  abuse.     All  these  rules  conform  to  the  necessities  and  customs  of  war. 

The  Brussels  Article  44  contained  a  final  paragraph  permitting  a  belligerent 
to  declare  "  that  he  will  not  receive  parlementaires  during  a  certain  period,"  and 
adding  that  "  parlementaires  presenting  themselves  after  such  a  notification,  from 
the  side  to  which  it  has  been  given,  forfeit  the  right  of  inviolability."  The  loss  of 
inviolability  is  certainly  an  extreme  penalty ;  but  this  special  point  has  no  longer 
any  interest,  for  this  provision  is  omitted  in  the  new  draft.  It  appears  from  the 
discussion  which  took  place  at  the  meeting  of  May  30,  and  especially  from  the 
remarks  made  on  this  article  by  the  first  delegate  of  Italy,  his  Excellency  Count 
Nigra,  that  according  to  the  views  of  the  subcommission,  the  principles  of  the 
law  of  nations  do  not  permit  a  belligerent  ever  to  declare,  even  for  a  limited  time, 
that  he  will  not  receive  flags  of  truce.  At  the  Brussels  Conference  in  1874,  more- 
over, this  provision  was  debated  at  length  and  was  only  finally  accepted  to  satisfy 
the  German  delegate.  General  von  Voigts-Rhetz.  The  technical  delegates  at 
the  Hague  Conference,  and  conspicuously  the  German  delegate,  Colonel  Gross 
VON  ScHWARZHOFF,  havc  on  the  contrary  seemed  to  consider  that  the  necessities 
of  warfare  are  sufficiently  regarded  in  the  option  that  every  military  commander 


FIFTH  MEETING,  JULY  5,  1899 :  ANNEXES  61 

has  of  not  receiving  a  flag  of  truce  in  all  circumstances  (first  paragraph  of  Article 
33).  They  accordingly  voted  with  the  entire  subcommission  for  the  abrogation 
of  the  last  paragraph  of  former  Article  44. 

Article  34  is  identical  with  Article  45  of  Brussels.  It  provides  that  "  the 
parlementaire  loses  his  rights  of  inviolability  if  it  is  proved  in  a  clear  and 
incontestable  manner  that  he  has  taken  advantage  of  his  privileged  position  to 
provoke  or  commit  an  act  of  treason."  This  provision  elicited  no  remarks  as  to 
its  substance.  It  was  merely  asked  how  a  parlementaire  could  commit  an  act  of 
treason  against  the  enemy.  The  text  was  nevertheless  retained  in  view  of  certain 
systems  of  penal  legislation  which  regard  the  instigator  of  an  offense  as  a 
principal. 

[42]  Chapter  IV. — Capitulations 

(Article  35) 

The  sole  article  of  this  chapter  is,  with  a  few  changes  in  wording,  like  Article 
46  of  the  Brussels  project. 

The  clause  according  to  which  "  capitulations  can  never  include  conditions 
contrary  to  honor  or  military  duty,"  proposed  at  Brussels  by  the  French  delegate, 
General  Arnaudeau,  and  inserted  almost  literally  in  Article  46,  has  been  retained 
in  principle.  The  wording  of  the  new  Article  35,  as  adopted  by  the  subcom- 
mission, gives  even  a  more  imperative  form  to  this  principle  by  saying  that  the 
capitulations  "  must  take  into  account  the  rules  of  military  honor." 

Chapter  V. — Armistices 
(Articles  36  to  41) 

This  chapter  contains  six  articles  corresponding  to  Articles  47  to  52  of  the 
Brussels  project  and  almost  reproduces  their  wording. 

Article  36  determines  the  effects  and  duration  of  an  armistice;  Article  37 
distinguishes  between  general  and  local  armistices.  These  two  articles  are  simply 
reproductions  of  Articles  47  and  48  of  Brussels. 

Article  38,  dealing  with  notification  of  an  armistice  and  with  suspension  of 
hostilities,  differs  from  Brussels  Article  49  in  admitting  that  hostilities  can  be 
suspended  not  only  from  the  very  moment  of  notification  but  after  a  time  agreed 
upon. 

The  wording  of  Article  39  follows  that  of  Article  50  of  Brussels,  but  expands 
it  and  renders  it  more  exact.  In  effect,  it  permits  an  armistice  to  regulate  not 
only  the  communications  betiveen  the  populations  but  also  those  with  them;  at 
the  same  time  it  says  that  this  shall  only  be  "  in  the  theatre  of  war."  In  the 
absence  of  special  clauses  in  the  armistice  these  matters  are  necessarily  governed 
by  the  ordinary  rules  of  warfare,  especially  by  those  concerning  occupation  of 
hostile  territory. 

The  subject  of  the  violation  of  an  armistice  by  one  of  the  parties  gave  rise 
to  a  discussion  in  the  meeting  of  May  30.  Article  51  of  the  Brussels  project 
confined  itself  on  this  subject  to  saying  that  a  violation  of  an  armistice  by  one 
of  the  parties  gives  the  other  the  right  to  denounce  it.  At  the  suggestion  of 
Colonel  Gross  von  Schwarzhoff,  the  subcommission  admitted  that  the  right  to 


62  PLENARY  CONFERENCE 

denounce  an  armistice  would  not  always  be  sufficient,  and  that  it  was  necessary 
to  recognize  in  the  belligerent  the  right,  in  cases  of  urgency,  "  of  recommencing 
hostilities  immediately."  On  the  other  hand,  the  subcommission  thought  that  in 
order  to  justify  a  denouncement  of  an  armistice  and,  with  greater  reason,  to 
authorize  an  immediate  resumption  of  hostilities,  there  must  be  a  serious  violation 
of  the  armistice ;  it  is  for  this  reason  that  the  new  Article  40  differs  to  that  extent 
from  the  article  accepted  at  Brussels. 

Article  52,  respecting  violation  of  an  armistice  by  individuals,  was  not  changed 
and  has  become  the  new  Article  41.  It  only  provides  for  "  the  punishment  of  the 
offenders  and,  if  necessary,  compensation  for  the  losses  sustained." 


SECTION  III. — Military  Authority  over  the  Territory  of  the  Hostile 

State 

(Articles  42  to  56) 

The  above  title  is  that  of  the  first  chapter  (Articles  1  to  8)  of  the  Declaration 
of  Brussels.  As  early  as  the  meeting  of  June  1,  the  subcommission  decided  to 
place  the  articles  concerning  contributions  and  requisitions  (Brussels  Articles  40 
to  42)  also  in  this  chapter  and  to  examine  them  at  the  same  time.  Finally  it 
instructed  the  drafting  committee  also  to  place  in  this  chapter  the  new  text  that 
had  already  been  adopted  for  Articles  36  to  39  inclusive  of  the  Declaration  of 
Brussels,  where  they  form  the  chapter  entitled  "  Military  authority  over  private 
individuals."  Thus  the  present  chapter  has  been  lengthened  considerably.  More- 
over, the  debate  on  it  has  been  arduous ;  but  the  patient  courtesy  of  Mr.  Martens, 
chairman  of  the  subcommission,  together  with  the  good  feeling  of  all  its  members, 
has  resulted  in  the  unanimous  agreement  that  every  one  ardently  hoped  for. 

The  first  article  of  this  chapter  (Article  42),  defining  occupation,  is  identical 
with  the  first  article  of  the  Declaration  of  Brussels.     It  should  be  stated 
[43]  that  it  was  adopted  unanimously  by  the  subcommission,  as  also  were  all 
or  nearly  all  of  the  principal  articles  of  this  chapter. 

Article  43  condenses  into  a  single  text  Articles  2  and  3  of  the  Brussels 
Declaration.  The  new  wording  was  proposed  by  Mr.  Bihourd,  the  Minister  of 
France  at  The  Hague  and  one  of  the  delegates  of  his  Government.  The  last 
words  of  Article  43,  where  it  is  said  that  the  occupant  shall  restore  or  ensure 
order  "  while  respecting,  unless  absolutely  prevented,  the  laws  in  force  in  the 
country,"  really  give  all  the  guaranties  that  the  old  Article  3  could  offer  and  do 
not  offend  the  scruples  of  which  Mr.  Beernaert  spoke  in  his  address,  referred 
to  at  the  beginning  of  this  report,  which  had  led  him  to  propose  at  first  that 
Article  3  be  omitted. 

The  omission  of  Article  4  of  the  Brussels  Declaration  was  unanimously  voted 
for  at  the  instance  of  Mr.  Beernaert,  vigorously  supported  by  Mr.  van  Karne- 
beek.  The  first  delegate  of  the  Netherlands  stated  that  he  opposed  any  provision 
that  might  seem  directly  or  indirectly  to  give  the  public  officers  of  an  invaded 
country  any  authority  to  place  themselves  at  the  service  of  the  invader.  It  was 
not  denied,  however,  that  certain  officers,  particularly  municipal  officers,  might 
sometimes  best  perform  their  duty,  in  a  moral  sense  at  least,  towards  their  people 
if  they  remained  at  their  posts  in  the  presence  of  the  invader. 


FIFTH  MEETING,  JULY  5,  1899:  ANNEXES  63 

The  four  following  articles,  Article  44  to  47  inclusive,  are  the  Brussels 
Articles  36  to  39  inclusive,  with  some  very  slight  changes.  They  set  forth  the 
recognized  essential  principles  which  must  serve  the  invader  and  the  occupant  as 
a  general  rule  of  conduct  in  his  relations  with  the  population.  These  principles 
safeguard  the  honor  and  lives  of  individuals  and  their  private  property,  whether 
individual  or  collective,  as  well  as  respect  for  religious  convictions. 

It  appeared  to  the  subcommission  that  these  articles  were  well  placed  in  this 
chapter  before  the  provisions  the  purpose  of  which  is  to  set  legal  limitations  upon 
the  actual  power  that  the  victor  wields  in  the  hostile  country. 

Besides,  as  Colonel  Gross  von  Schwarzhoff  remarked  without  contra- 
diction, these  limitations  could  not  be  deemed  to  check  the  liberty  of  action  of 
belligerents  in  certain  extreme  circumstances  which  may  be  likened  to  a  kind  of 
legitimate  defense. 

The  new  Article  48,  like  Article  5  of  the  Brussels  Declaration,  provides  that 
the  occupant  shall  collect  the  existing  taxes,  and  in  this  case  prescribes  that  he 
must  "  defray  the  expenses  of  the  administration  of  the  occupied  territory  to  the 
same  extent  as  the  legitimate  Government  was  so  bound."  It  may  be  observed 
that  the  new  article  adopts  a  conditional  form.  This  wording  was  proposed  by 
the  reporter  with  a  view  to  obtaining  the  support  of  Mr.  Beernaert  and  other 
members  of  the  subcommission  who  had  expressed  the  fears  with  which  every 
wording  seemingly  recognizing  rights  in  an  occupant  as  such  inspired  in  them. 

The  four  next  articles,  49  to  52  inclusive,  deal  with  extraordinary  contribu- 
tions, with  fines,  and  with  requisitions,  and  take  the  place  of  Articles  40  to  42 
inclusive  of  the  Brussels  Declaration.  Quite  a  divergence  of  views  on  the  subject 
of  these  articles  was  evidenced  in  the  debate. 

On  motion  of  Mr.  Bourgeois,  seconded  by  Mr.  Beldiman,  the  question  was 
referred  to  the  drafting  committee  with  an  instruction  to  set  forth  in  a  new  text 
only  the  points  on  which  an  agreement  seemed  possible. 

The  committee,  of  which  Mr.  Bourgeois  was  chairman,  made  a  thorough 
study  of  these  questions  with  the  active  assistance  of  Messrs.  Beernaert,  van 
Karnebeek,  and  Odier,  and  it  ascertained  that  agreement  certainly  existed  on 
three  important  points  concerning  the  levying  of  contributions  of  any  kind  in 
hostile  territory.     These  three  points  are  the  following : 

1.  Every  order  to  collect  contributions  should  emanate  from  a  respon- 
sible military  chief,  and  should  be  given,  as  far  as  possible,  in  writing. 

2.  For  all  collections,  especially  those  of  sums  of  money,  it  is  necessary 
to  take  into  account  as  far  as  possible  the  distribution  and  assessment  of  the 
existing  taxes. 

3.  Every  collection  should  be  evidenced  by  a  receipt. 

The  committee  next  discussed  the  question  whether  it  should  confine  itself 
to  giving  expression  to  these  three  purely  formal  conditions  and  to  determining 
to  what  extent  they  are  applicable  to  the  requisitions  in  kind  or  money  and  the 
fines  required  by  the  occupant.  It  came  to  the  conclusion  that,  relying  on  the 
general  considerations  indicated  at  the  beginning  of  this  report,  as  being  of  a 
nature  to  dispose  of  the  objections  stated  by  Mr.  Beernaert,  it  would  be  not 
only  possible  but  also  highly  desirable  to  state  certain  principles  on  the  lines  of 
Articles  40  to  42  of  the  Brussels  Declaration,  that  is  to  say,  concerning  the  limita- 
tions to  be  placed  on  the  actual  power  which  the  invader  exercises  against  the 


64  PLENARY  CONFERENCE 

legal  authorities  and  which  in  its  tendency  weakens  the  principle  of  respect  for 
private  property.     The  rules  to  be  laid  down  relate  to  three  categories  of  acts : 

[44]  a.  Requisitions  for  payments  in  kind  (money  being  excepted),  and  for 

personal   services,   in  other   words,   "  requisitions   in   kind   and   services " 
(Article  51)  ; 

b.  The  levying  and  collection  of  contributions  of  money  beyond  the 
existing  taxes  (Article  49)  ; 

c.  The  imposition  and  collection  of  what  are  improperly  called  "  fines  " 
(Article  50). 

a.  As  to  requisitions  in  kind  and  services,  it  has  been  admitted  that  the 
occupant  cannot  demand  them  from  communes  or  inhabitants  except  "  for  the 
needs  of  the  army  of  occupation."  This  is  the  rule  of  necessity ;  but  this  necessity 
is  that  of  maintaining  the  army  of  occupation.  It  is  no  longer  the  rather  vague 
criterion  of  "  necessities  of  war  "  mentioned  in  Article  40  of  the  Brussels  project 
under  which,  strictly,  the  country  might  be  systematically  exhausted. 

It  has  been  fully  agreed  to  retain  the  provision  of  Article  40  of  the  Brussels 
Declaration  which  requires  that  the  requisitions  and  services  shall  be  "  in  pro- 
portion to  the  resources  of  the  country,  and  of  such  a  nature  as  not  to  involve 
the  population  in  the  obligation  of  taking  part  in  the  operations  of  the  ^  war 
against  their  country." 

It  was  necessary  to  recognize  that  one  of  the  three  formal  conditions  men- 
tioned above,  that  of  collection  "  following  the  local  rules  of  distribution  and 
assessment  of  taxes,"  although  applicable  in  a  certain  degree  to  contributions  in 
personal  services,  is  evidently  not  applicable  to  requisitions  in  kind  properly  so 
called,  that  is  to  say,  the  requisition  of  particular  objects  in  the  hands  of  their 
owners  either  to  make  temporary  use  of  them  or  for  consumption.  The  com- 
mittee therefore  thought,  and  the  subcommission  agreed  thereto,  that  some  limi- 
tation should  be  stated  here  so  that  the  requisitions  and  services  demanded  will 
be  "  in  proportion  to  the  resources  of  the  country." 

There  remain  two  other  formal  conditions  that  were  agreed  upon,  one 
respecting  the  order  for  the  collection  and  the  other  respecting  the  receipt.  These 
two  conditions  already  appeared  in  Article  42  of  the  Brussels  project,  and  the 
committee  had  little  to  do  beyond  reproducing  them.  In  conformity  with  the 
Brussels  text  it  has  been  agreed  that  the  requisition  orders  must  emanate  only 
from  the  commander  on  the  spot,  but  that  in  this  case  the  requirement  of  a 
written  order  would  be  excessive.  Military  necessities  are  opposed  to  demanding 
for  ordinary  daily  requisitions  a  higher  authority  than  that  of  the  officer  on  the 
spot,  and  a  written  order  would  be  superfluous  in  view  of  the  obligation  to  give 
a  receipt. 

Lastly,  the  wording  agreed  upon  in  the  matter  of  requisitions  recommends 
the  rule  of  payment  therefor  in  money,  although  such  payment  is  not  made  a 
hard-and-fast  obligation.  Such  payments  will  ordinarily  take  place  under  the 
form  of  real  purchases  instead  of  requisitions.  And  it  is  to  be  noted  that  this  will 
often  be  not  only  a  method  of  strict  humanity  but  also  commonly  one  of  shrewd 
policy,  if  only  to  deter  the  people  from  hiding  their  provisions  and  produce. 
Besides,  the  army  of  occupation  will  obtain  in  the  same  country  the  money  neces- 
sary for  payments  on  account  of  requisitions  or  purchases  by  means  of  contribu- 

^  [This  word  "  the  "  does  not  appear  in  the  Declaration  of  Brussels.] 


FIFTH  MEETING,  JULY  5,  1899:  ANNEXES  65 

tions   whose   weight  will   be   distributed   over   all,   whilst   requisitions   without 
indemnity  strike  at  random  upon  isolated  individuals. 

b.  As  to  the  money  contributions  that  the  occupant  may  wish  to  collect  beyond 
the  regular  taxes,  the  subcommission  at  the  instance  of  the  drafting  committee 
agreed  upon  the  very  interesting  and  valuable  rule  for  occupied  territory,  that 
except  in  the  special  cases  of  fines,  which  are  the  subject  of  a  separate  article, 
these  contributions  can,  like  requisitions,  be  levied  "  for  the  needs  of  the  army  " 
alone.  The  only  other  legitimate  motive  for  collecting  these  contributions  would 
lie  in  the  administrative  needs  of  the  occupied  territory,  and  the  population  thereof 
evidently  cannot  make  a  just  complaint  on  that  score. 

On  the  whole  what  is  forbidden  is  levying  contributions  for  the  purpose  of 
enriching  oneself. 

It  is  important  to  state  that  this  formula  is  more  stringent  than  that  of 
Article  41  of  the  Brussels  Declaration;  and  right  here  is  a  point  that  received 
the  especial  attention  of  those  members  of  the  subcommission  who,  being  properly 
interested  by  the  situation  of  their  countries,  showed  themselves  above  all  solici- 
tous to  restrain  as  far  as  possible  by  legal  rules  the  absolute  liberty  of  action  that 
success  in  arms  actually  gives  to  an  invader. 

The  three  formal  conditions  indicated  above  (the  order  for  collection,  the 
collection,  and  the  receipt)  have  unlimited  application  to  these  contributions,  but 
it  seemed  best  to  insert  them  in  a  special  article  applicable  to  every  collection 
of  money. 

c.  As  to  fines,  a  separate  article  seemed  necessary  in  order  that  it  might  be 
determined  as  exactly  as  possible  in  what  cases  it  is  proper  to  impose  fines. 

In  the  view  of  the  committee  the  word  fines  itself  is  not  quite  apt  because 
[45]  it  lends  itself  to  confusion  in  thought  with  penal  law.  Certain  members 
of  the  committee  have  even  urged  that  the  use  of  the  word  "  repression  " 
be  avoided. 

According  to  the  point  of  view  at  first  taken  by  the  subcommission,  this  article 
ought  to  deal  only  with  what  is  given  the  special  designation  "  fines  "  in  the  law 
of  war,  that  is  a  particular  form  of  extraordinary  contribution  consisting  in  the 
collection  of  sums  of  money  by  the  occupant  for  the  purpose  of  checking  acts 
of  hostility.  On  this  subject  the  subcommission  was  unanimously  of  opinion  that 
this  means  of  restraint  which  strikes  the  mass  of  the  population  ought  only  to  be 
applied  as  a  consequence  of  reprehensible  or  hostile  acts  committed  by  it  as  a 
whole  or  at  least  permitted  by  it  to  be  committed.  Consequently,  acts  that  are 
strictly  those  of  individuals  could  never  give  rise  to  collective  punishment  by  the 
collection  of  extraordinary  contributions,  and  it  is  necessary  that  in  order  to 
inflict  a  penalty  on  the  whole  community  there  must  exist  as  a  basis  therefor  at 
the  very  least  a  passive  responsibility  therefor  on  the  part  of  the  community. 
Having  proceeded  thus  far  upon  this  course,  the  drafting  committee  first,  and 
then  the  subcommission,  thought  they  could  go  still  further  and,  without  pre- 
judging the  question  of  reprisals,  declare  that  this  rule  is  true,  not  only  for  fines,, 
but  for  every  penalty,  whether  pecuniary  or  not,  that  is  sought  to  be  inflicted 
upon  the  whole  of  a  population. 

Finally,  the  subcommission  approved  the  special  Article  52  proposed  by  the 
committee,  concerning  the  three  formal  rules  applicable  to  every  collection  what* 
ever  of  sums  of  money  by  the  occupant. 

It  is  on  the  strength  of  the  foregoing  considerations  that  the  subcommission 


66  PLENARY  CONFERENCE 

has  adopted  with  only  a  few  slight  modifications  in  form  Articles  49  to  52  of  the 
text  proposed  to  it  by  the  drafting  committee. 

It  is  also  proper  to  say  that  these  provisions  have  been  voted  unanimously 
with  the  exception  of  the  vote  of  the  delegate  of  Switzerland  on  Articles  51  and 
52.  That  delegate  had  proposed  in  behalf  of  his  Government  that  the  right  to 
claim  payment  or  reimbursement  on  the  evidence  of  the  receipts  be  expressly 
stipulated  in  these  articles.  The  subcommission  thought  that  such  a  stipulation 
would  be  out  of  place  in  the  proposed  Declaration  as  it  relates  rather  to  internal 
public  law  and  will  naturally  be  the  subject  of  one  of  the  clauses  of  the  treaty 
of  peace. 

The  next  article,  bearing  the  number  53,  corresponds  to  Article  6  of  the 
Brussels  Declaration.  It  deals  with  seizure  by  the  occupant  of  the  personal 
property  of  the  hostile  State  and,  by  extension,  of  all  material  serviceable  for 
carrying  on  war  and  especially  of  railway  plant. 

The  subcommission  unanimously  adopted  the  first  paragraph  of  this  article 
at  once  without  making  any  change  therein.  Such  was  not  the  case  with  the 
second  paragraph,  which  derogates,  especially  in  the  matter  of  railway  plant,  from 
the  principle  of  respect  for  private  property.  Mr.  Beernaert  proposed  to  indi- 
cate that  seizure  of  this  material  can  only  be  in  the  nature  of  a  sequestration,  aside 
from  the  option  of  requisitioning  it  for  the  needs  of  the  war.  This  proposal  was 
discussed  at  length,  with  the  result  that  this  paragraph  and  its  amendments  were 
returned  to  the  drafting  committee.  That  committee  expressed  the  opinion  that 
if  greater  exactness  were  given  to  the  wording  of  this  provision,  it  would  probably 
be  impossible  to  reach  an  agreement,  and  that  it  therefore  seemed  best  to  preserve 
as  far  as  possible  the  text  of  the  Brussels  draft.  Nevertheless  the  draft  was 
condensed  into  a  single  sentence  for  the  sake  of  precision,  and,  on  the  proposal 
of  the  drafting  committee,  the  subcommission  also  decided  to  omit  an  ambiguous 
■clause  which  said  that  the  means  in  question  of  carrying  on  war  "  cannot  be  left 
hy  the  army  of  occupation  at  the  disposal  of  the  enemy."  Moreover  this  clause 
•seemed  to  contain  an  allusion  to  the  idea  of  sequestration  which  the  subcommission 
wished  to  avoid. 

On  the  other  hand,  the  drafting  committee  and  later  the  subcommission 
accepted  the  principle  of  the  amendment  proposed  by  Mr.  Bille,  the  senior  dele- 
gate of  Denmark,  concerning  "  shore  ends  of  cables."  It  was  therefore  decided 
to  say :  "  Land  telegraphs  including  shore  ends  of  cables."  ^  The  author  of  the 
amendment  further  specified  the  shore  ends  of  cables  which  are  "  established 
within  the  maritime  territorial  limits  of  the  State." 

As  it  was  necessary  to  refrain  from  dealing  here,  even  incidentally,  with  the 
very  delicate  questions  of  the  nature  of  the  rights  of  a  State  over  the  adjacent 
territorial  sea  and  of  the  extent  of  such  marginal  waters,  the  last  words  of 
Mr.  Bille's  amendment  were  not  adopted. 

Furthermore,  on  motion  of  Mr.  Lammasch,  it  was  decided  that  the  article 
should  mention  telephones. 

It  did  not  seem  opportune  to  make  any  special  stipulation  with  regard  to  the 

application  of  this   article  that  the  belligerent   who  makes   a   seizure   is 

[46]  obliged  to  give  a  receipt  as  in  the  case  of  requisitions;  but  the  committee 

was  nevertheless  of  opinion  that  the  fact  of  seizure  should  be  clearly 

*  [In  the  seventh  plenary  meeting  of  the  Conference,  July  25,  1899,  the  words  "  including 
.shore  ends  of  cables  "  were  struck  out  from  the  draft  regulations.    Pt.  i,  post,  p.  101.] 


FIFTH  MEETING,  JULY  5,  1899:  ANNEXES  67 

Stated  one  way  or  another  if  only  to  furnish  the  owner  of  the  articles  seized  with 
an  opportunity  to  claim  the  indemnity  expressly  provided  in  the  text. 

The  proposal  by  Mr.  Odier  that  "  railway  plant  even  when  belonging  to  the 
enemy  State  shall  be  restored  at  the  conclusion  of  peace  "  was  not  accepted,  as 
the  committee  believed  that  this  question  was  among  those  that  should  be  settled 
by  the  treaty  of  peace. 

Article  54,  which  is  wholly  new  and  due  to  the  initiative  of  Messrs.  Beer- 
JMAERT  and  Eyschen,  prescribes  that :  '*  the  plant  of  railways  coming  from  neutral 
States,  whether  the  property  of  those  States  or  of  companies  or  of  private  persons, 
shall  be  sent  back  to  them  as  soon  as  possible."  Mr.  Beernaert  had  suggested 
ordering  immediate  restitution  of  this  material  with  a  prohibition  of  using  it  for 
the  needs  of  the  war;  but  the  subcommission  agreed  with  the  drafting  committee 
in  thinking  that  it  was  sufficient  to  lay  down  the  principle  of  restitution  within  a 
short  time  for  the  sole  purpose  of  pointing  out  that  the  material  belonging  to 
neutrals,  unlike  that  of  belligerents,  cannot  be  the  object  of  seizure. 

Article  55,  relative  to  the  administration  of  State  property  in  occupied  terri- 
tory, is  a  verbatim  reproduction  of  Article  7  of  the  Brussels  draft. 

Article  56,  too,  which  relates  to  respect  for  property  belonging  to  communes 
and  charitable  and  other  institutions,  is  identical  with  the  Brussels  Article  8,  save 
for  a  very  slight  change  in  wording  of  the  second  paragraph.  There  can  be  no 
doubt  that  the  expression  "  institutions  dedicated  to  religion  "  found  in  this  Article 
56,  applies  to  all  institutions  of  that  kind,  as  churches,  temples,  mosques,  syna- 
gogues, etc.,  without  any  discrimination  between  the  divers  forms  of  worship. 
This  was  already  affirmed  at  Brussels  in  1874,^  and  it  is  likewise  the  answer  given 
for  the  committee  to  General  Mirza  Riza  Khan,  the  senior  delegate  of  Persia, 
in  response  to  a  request  for  explanation. 

A  general  observation  should  be  made  on  the  subject  of  all  the  articles  com- 
prised in  Section  III.  This  is  that  the  restrictions  imposed  on  the  liberty  of  action 
of  an  occupant  apply  a  fortiori  to  an  invader  when  an  occupation  has  not  yet  been 
established  in  the  sense  of  Article  42. 

Thus  Articles  44  and  45  apply  to  the  invader  as  well  as  to  the  occupant,  and 
either  of  them  will  necessarily  be  forbidden  to  force  the  population  of  a  territory 
to  take  part  in  military  operations  against  its  own  country  or  to  swear  allegiance 
to  the  hostile  Power. 

As  to  the  collection  of  contributions  and  requisitions  or  to  the  seizure  of 
fnateriel,  it  is  understood  that  an  invader  shall  stand  in  these  matters  in  the  same 
position  as  an  occupant. 


SECTION  IV. — The  Internment  of  Belligerents  and  the  Care  of  the 

Wounded  in  Neutral  States 

(Articles  57  to  60) 

The  four  articles  comprised  in  this  final  chapter  of  the  draft  voted  by  the 
subcommission  are  a  verbatim  copy  of  Articles  53  to  56  inclusive  of  the  Brussels 
project,  with  the  exception  of  the  addition  of  a  supplementary  paragraph  to 
Article  59, 

*  [Protocol  No.  18.] 


68  '  PLENARY  CONFERENCE 

At  the  opening  of  the  discussion  on  these  articles,  and  particularly  with 
reference  to  the  first  one,  which  treats  of  the  internment  of  belligerents  on  neutral 
territory,  his  Excellency  Mr.  Eyschen,  the  senior  delegate  of  Luxemburg,  in  the 
meeting  of  June  6  spoke  of  the  special  situation  of  the  Grand  Duchy  under  the 
Treaty  of  London  of  1867  with  regard  to  this  obligation  to  intern  belligerents. 
That  treaty  disarmed  the  Luxemburg  Government,  and  does  not  permit  it  to 
maintain  more  troops  than  are  necessary  to  preserve  public  order.  The  result 
is  that  Luxemburg  could  not  assume  the  same  obligation  as  the  other  States. 
On  the  request  of  Mr.  Eyschen  record  was  made  of  his  declaration  that  he 
intends  to  reserve  to  his  country  all  rights  under  the  Treaty  of  London  of  May 
11,  1867,  and  especially  Articles  2,  3,  and  5  thereof. 

Articles  53  and  54  of  the  Brussels  project  respecting  the  internment  of 
belligerents  on  neutral  territory  were  then  adopted  without  modification  and  have 
become  Articles  57  and  58  of  the  subcommission's  draft. 

Article  59  relating  to  passage  over  ^  neutral  territory,  that  is  to  say  across 
neutral  territory,  of  the  wounded  or  sick  belonging  to  belligerent  armies,  is  like 
the  Brussels  Article  55  except  for  the  addition  of  the  third  paragraph.  This 
supplementary  paragraph  was  adopted  on  the  first  reading  on  motion  of 
[47]  Mr.  Beernaert  and  General  Mounier,  as  follows :  "  When  once  ad- 
mitted into  neutral  territory,  the  sick  or  wounded  can  be  returned  only 
to  their  country  of  origin." 

But  doubts  immediately  arose  as  to  the  exact  meaning  of  this  stipulation. 
Several  members  of  the  committee  believed  that  it  gave  authority  to  the  neutral 
State  to  restore  the  wounded  and  sick  forthwith  to  their  country  of  origin,  whereas 
evidently  the  only  question  should  be  that  of  forbidding  the  use  of  neutral  territory 
for  the  purpose  of  conveying  sick  or  wounded  to  a  hostile  country  where  they 
would  become  prisoners  of  war.  The  new  draft  precludes  all  doubt,  by  saying 
that  "  wounded  or  sick  brought  under  these  conditions  into  neutral  territory  by 
one  of  the  belligerents,  and  belonging  to  the  hostile  party,  must  be  guarded  by  the 
neutral  State,  so  as  to  ensure  their  not  taking  part  again  in  the  operations  of 
the  war."  General  Zuccari,  the  technical  delegate  of  the  Italian  Government, 
declared  that  having  in  view  respect  for  absolute  impartiality  on  the  part  of 
neutrals,  he  regretted  that  he  could  not  give  his  approval  to  this  last  wording 
any  more  than  to  the  preceding  one. 

There  remained  the  case  of  wounded  or  sick  belonging  to  the  army  of  the 
belligerent  which  is  conveying  them,  but  which  for  one  reason  or  another,  instead 
of  simply  passing  through  the  neutral  territory,  stops  there.  It  surely  would  be 
extraordinary  if  they  could,  when  they  recover,  take  part  again  in  the  operations 
of  the  war,  and  that  is  why  the  subcommission  adopted  on  second  reading,  on 
the  motion  of  Mr.  Beernaert,  an  additional  provision  stipulating  that  these 
wounded  or  sick  must  likewise  be  guarded  by  the  neutral  State. 

Mr.  Crozier  had  drawn  the  attention  of  the  subcommission  to  a  contra- 
diction existing  in  his  opinion  between  the  paragraph  in  question  and  Article  10 
of  the  draft  for  the  adaptation  of  the  principles  of  the  Geneva  Convention  to 

*  [The  Declaration  of  Brussels  has  "passage  par  son  territoire."  In  1899  the  par 
was  replaced  by  sur,  which  appeared  in  the  subcommission's  draft  and  persisted  although 
the  subcommission  decided  (pt.  iii,  post,  p.  509)  that  the  first  two  paragraphs  of  Article  55 
of  the  Brussels  Declaration  should  be  preserved  in  their  existing  wording.  Amid  the  variety 
of  translations  we  follow  Professor  Holland  in  rendering  sur  by  over  in  this  phrase.] 


FIFTH  MEETING,  JULY  5,  1899:  ANNEXES  69 

maritime  warfare.     It  seems  that  this  contradiction  was  only  apparent;  but  in 
any  case  it  disappears  in  the  new  wording. 

With  respect  to  the  whole  principle  of  Article  59,  General  Mounier  had 
appeared  rather  inclined  to  ask  that  the  sick  and  wounded  be  denied  any  passage, 
in  view  of  the  indirect  service  that  the  neutral  State  could  render  to  one  of  the 
belligerents  by  making  it  easy  for  him  to  relieve  himself  of  his  wounded  and  sick. 
The  whole  subcommission  was  agreed  that  the  neutral  State  should  be  guided 
by  rules  of  absolute  impartiality  in  lending  its  humane  aid  under  such  circum- 
stances, and  in  the  meeting  of  June  8  a  sort  of  authentic  commentary  on  the 
meaning  of  this  Article  was  proposed  by  Mr.  Beernaert,  accepted  by  General 
Mounier,  and  unanimously  adopted.  This  official  explanation  is  in  the  following 
terms : 

This  article  has  no  other  bearing  than  to  establish  that  considerations 
of  humanity  and  hygiene  may  determine  a  neutral  State  to  allow  wounded  or 
sick  soldiers  to  pass  across  its  territory  without  failing  in  its  duties  of 
neutrality. 

Finally  Article  60  reproduces  verbatim  the  final  Article  56  of  the  Declaration 
of  Brussels.  It  prescribes  that  the  Geneva  Convention  applies  to  sick  and 
wounded  interned  in  neutral  territory. 

After  the  Commission  shall  have  decided  on  the  text  of  the  project  of  "  the 
Declaration  concerning  the  laws  and  customs  of  war  on  land,"  its  first  care  might 
be  to  consider  under  what  form  it  would  be  preferable  to  sanction  the  obligatory 
character  of  the  articles  of  this  Declaration. 


[48]  Annex  2  to  the  Minutes  of  the  Fifth  Meeting,  July  5 

DECLARATION  CONCERNING  THE  LAWS  AND  CUSTOMS  OF 

WAR  ON  LAND 

SECTION  I.— On  Belligerents 

Chapter  I. — The  qualifications  of  belligerents 

Article  1 

The  laws,  rights,  and  duties  of  war  apply  not  only  to  armies,  but  also  to 
militia  and  volunteer  corps  fulfilling  the  following  conditions : 

L     That  they  be  commanded  by  a  person  responsible  for  his  subordinates; 

2.  That  they  have  a  fixed  distinctive  emblem  recognizable  at  a  distance; 

3.  That  they  carry  arms  openly ;  and 

4.  That  they  conduct  their  operations  in  accordance  with  the  laws  and 
customs  of  war. 

In  countries  where  militia  or  volunteer  corps  constitute  the  army,  or  form 
part  of  it,  they  are  included  under  the  denomination  army. 


70  PLENARY  CONFERENCE 

Article  2 

The  population  of  a  territory  which  has  not  been  occupied  who,  on  the  ap- 
proach of  the  enemy,  spontaneously  take  up  arms  to  resist  the  invading  troops 
without  having  time  to  organize  themselves  in  accordance  with  Article  1,  shall 
be  regarded  as  belligerents  if  they  respect  the  laws  and  customs  of  war. 

Article  3 

The  armed  forces  of  the  belligerent  parties  may  consist  of  combatants  and 
non-combatants.  In  case  of  capture  by  the  enemy,  both  have  a  right  to  be 
treated  as  prisoners  of  war. 

Chapter  II. — Prisoners  of  war 
Article  4 

Prisoners  of  war  are  in  the  power  of  the  hostile  Government,  but  not  in 
that  of  the  individuals  or  corps  who  captured  them. 

They  must  be  humanely  treated. 

All  their  personal  belongings,  except  arms,  horses,  and  military  papers, 
remain  their  property. 

Article  5 

Prisoners  of  war  may  be  interned  in  a  town,  fortress,  camp,  or  other  place, 
under  obligation  not  to  go  beyond  certain  fixed  limits ;  but  they  can  only  be  placed 
in  confinement  as  an  indispensable  measure  of  safety. 

Article  6 

The  State  may  utilize  the  labor  of  prisoners  of  war  according  to  their  rank 
and  aptitude.  The  tasks  shall  not  be  excessive  and  shall  have  no  connection  with 
the  operations  of  the  war. 

Prisoners  may  be  authorized  to  work  for  the  public  service,  for  private 
persons,  or  on  their  own  account. 

Work  done  for  the  State  is  paid  for  at  the  rates  in  force  for  work  of  a  similar 
kind  done  by  soldiers  of  the  national  army. 

When  the  work  is  for  other  branches  of  the  public  service  or  for  private  per- 
sons, the  conditions  are  settled  in  agreement  with  the  military  authorities. 
[49]  The  wages  of  the  prisoners  shall  go  toward  improving  their  position,  and 
the  balance  shall  be  paid  them  at  the  time  of  their  release,  after  deducting 
the  cost  of  their  maintenance. 

Article  7 

The  Government  into  whose  hands  prisoners  of  war  have  fallen  is  charged 
with  their  maintenance. 

In  the  absence  of  a  special  agreement  between  the  belligerents,  prisoners 
of  war  shall  be  treated  as  regards  food,  quarters,  and  clothing,  on  the  same 
footing  as  the  troops  of  the  Government  which  has  captured  them. 

Article  8 

Prisoners  of  war  shall  be  subject  to  the  laws,  regulations,  and  orders  in 
■force  in  the  army  of  the  State  in  whose  power  they  are.     Any  act  of  insubordi- 


FIFTH  MEETING,  JULY  5,  1899:  ANNEXES  71 

nation  justifies  the  adoption  towards  them  of  such  measures  of  severity  as  may- 
be necessary. 

Escaped  prisoners  who  are  retaken  before  being  able  to  rejoin  their  army 
or  before  leaving  the  territory  occupied  by  the  army  that  captured  them  are  liable 
to  disciplinary  punishment. 

Prisoners  who,  after  succeeding  in  escaping,  are  again  taken  prisoners,  are 
not  liable  to  any  punishment  for  the  previous  flight. 

Article  9 

Every  prisoner  of  war  is  bound  to  give,  if  questioned  on  the  subject,  his  true 
name  and  rank,  and  if  he  infringes  this  rule,  he  is  liable  to  a  curtailment  of  the 
advantages  accorded  to  the  prisoners  of  war  of  his  class. 

Article  10 

Prisoners  of  war  may  be  set  at  liberty  on  parole  if  the  laws  of  their  country 
allow  it,  and,  in  such  cases,  they  are  bound,  on  their  personal  honor,  scrupulously 
to  fulfil,  both  toward  their  own  Government  and  the  Government  by  which  they 
are  made  prisoners,  the  engagements  they  have  contracted. 

In  such  cases  their  own  Government  is  bound  neither  to  require  of  nor 
accept  from  them  any  service  incompatible  with  the  parole  given. 

Article  11 

A  prisoner  of  war  can  not  be  compelled  to  accept  his  liberty  on  parole; 
similarly  the  hostile  Government  is  not  obliged  to  accede  to  the  request  of  the 
prisoner  to  be  set  at  liberty  on  parole. 

Article  12 

Any  prisoner  of  war  liberated  on  parole  and  retaken  bearing  arms  against 
the  Government  to  which  he  had  pledged  his  honor,  or  against  the  allies  of  that 
Government,  forfeits  his  right  to  be  treated  as  a  prisoner  of  war,  and  can  be 
brought  before  the  courts. 

Article  13 

Individuals  who  follow  an  army  without  directly  belonging  to  it,  such  as 
newspaper  correspondents  and  reporters,  sutlers  and  contractors,  who  fall  into  the 
enemy's  hands,  and  whom  the  latter  thinks  fit  to  detain,  are  entitled  to  be  treated 
as  prisoners  of  war,  provided  they  are  in  possession  of  a  certificate  from  the 
military  authorities  of  the  army  they  were  accompanying. 

Article  14 

An  information  bureau  relative  to  prisoners  of  war  is  instituted,  on  the 
■commencement  of  hostilities,  in  each  of  the  belligerent  States,  and,  when  neces- 
sary, in  neutral  countries  which  have  received  belligerents  in  their  territory.  The 
iunction  of  this  bureau  is  to  reply  to  all  inquiries  about  the  prisoners,  to  receive 
from  the  various  services  concerned  all  the  information  necessary  to  enable  it 
to  make  out  an  individual  return  for  each  prisoner  of  war.  It  is  kept  informed 
of  internments  and  transfers,  as  well  as  of  admissions  into  hospitals  and  deaths. 

It  is  likewise  the  function  of  the  information  bureau  to  receive  and  collect 


72  PLENARY  CONFERENCE 

all  objects  of  personal  use,  valuables,  letters,  etc.,  found  on  the  field  of  battle  or 
left  by  prisoners  who  have  died  in  hospitals  or  ambulances,  and  to  forward  them 
to  those  concerned. 

[50]  Article  15 

Relief  societies  for  prisoners  of  war,  which  are  properly  constituted  in 
accordance  with  the  laws  of  their  country  and  with  the  object  of  serving  as  the 
channel  for  charitable  effort  shall  receive  from  the  belligerents,  for  themselves 
and  their  duly  accredited  agents,  every  facility  for  the  efficient  performance  of 
their  humane  task  within  the  bounds  imposed  by  military  necessities  and  admin- 
istrative regulations.  Agents  of  these  societies  may  be  admitted  to  the  places 
of  internment  for  the  purpose  of  distributing  relief,  as  also  to  the  halting-places 
of  repatriated  prisoners,  if  furnished  with  a  personal  permit  by  the  military 
authorities,  and  on  giving  an  undertaking  in  writing  to  comply  with  all  measures 
of  order  and  police  which  the  latter  may  issue. 

Article  16 

Information  bureaus  enjoy  the  privilege  of  free  postage.  Letters,  money 
orders,  and  valuables,  as  well  as  parcels  by  post,  intended  for  prisoners  of  war, 
or  dispatched  by  them,  shall  be  exempt  from  all  postal  duties  in  the  countries  of 
origin  and  destination,  as  well  as  in  the  countries  they  pass  through. 

Presents  and  relief  in  kind  for  prisoners  of  war  shall  be  admitted  free  of 
all  import  or  other  duties,  as  well  as  of  payments  for  carriage  by  State  railways. 

Article  17 
Officers  taken  prisoners  may  receive,  if  necessary,  the  full  pay  allowed  them 
in  this  position  by  their  country's  regulations,  the  amount  to  be  refunded  by  their 
Government. 

Article  18 
Prisoners  of  war  shall  enjoy  complete  liberty  in  the  exercise  of  their  religion, 
including  attendance  at  the  services  of  whatever  church  they  may  belong  to,  on 
the  sole  condition  that  they  comply  with  the  measures  of  order  and  police  issued 
by  the  military  authorities. 

Article  19 

The  wills  of  prisoners  of  war  are  received  or  drawn  up  in  the  same  way  as 
for  soldiers  of  the  national  army. 

The  same  rules  shall  be  observed  regarding  death  certificates  as  well  as  for 
the  burial  of  prisoners  of  war,  due  regard  being  paid  to  their  grade  and  rank. 

Article  20 

After  the  conclusion  of  peace,  the  repatriation  of  prisoners  of  war  shall  be 
carried  out  as  quickly  as  possible. 

Chapter  III. — The  sick  and  wounded 

Article  21 
The  obligations  of  belligerents  with  regard  to  the  sick  and  wounded  are 
governed  by  the  Geneva  Convention  of  August  22,  1864,  subject  to  any  modifi- 
cations which  may  be  introduced  into  it. 


FIFTH  MEETING,  JULY  5,  1899:  ANNEXES  73 

SECTION  II.— On  Hostilities 
Chapter  L — Means  of  injuring  the  enemy,  sieges  and  bombardments 

Article  22 

The  right  of  belHgerents  to  adopt  means  of  injuring  the  enemy  is  not 
unlimited. 

Article  23 

In  addition  to  the  prohibitions  provided  by  special  conventions,  it  is  especially 
forbidden : 

(a)  To  employ  poison  or  poisoned  weapons; 
[51]    (b)  To  kill  or  wound  treacherously  individuals  belonging  to  the  hostile 
nation  or  army ; 

(c)  To  kill  or  wound  an  enemy  who,  having  laid  down  his  arms,  or  having 
no  longer  means  of  defense,  has  surrendered  at  discretion; 

(d)  To  declare  that  no  quarter  will  be  given ; 

(^)  To  employ  arms,  projectiles,  or  material  calculated  to  cause  unnecessary 
suffering ; 

(/)  To  make  improper  use  of  a  flag  of  truce,  of  the  national  flag,  or  of 
the  military  insignia  and  uniform  of  the  enemy,  as  well  as  the  distinctive  badges 
of  the  Geneva  Convention ; 

(g)  To  destroy  or  seize  the  enemy's  property,  unless  such  destruction  or 
seizure  be  imperatively  demanded  by  the  necessities  of  war. 

Article  24 

Ruses  of  war  and  the  employment  of  measures  necessary  for  obtaining 
information  about  the  enemy  and  the  country  are  considered  permissible. 

Article  25 

It  is  forbidden  to  attack  or  bombard  towns,  villages,  dwellings,  or  buildings 
that  are  not  defended. 

Article  26 

The  officer  in  command  of  an  attacking  force  must,  before  commencing  a 
bombardment,  except  in  cases  of  assault,  do  all  in  his  power  to  warn  the 
authorities. 

Article  27 

In  sieges  and  bombardments  all  necessary  steps  must  be  taken  to  spare,  as  far 
as  possible,  buildings  dedicated  to  religion,  art,  science,  or  charitable  purposes, 
hospitals,  and  places  where  the  sick  and  wounded  are  collected,  provided  they 
are  not  being  used  at  the  time  for  military  purposes. 

It  is  the  duty  of  the  besieged  to  indicate  the  presence  of  such  buildings  or 
places  by  distinctive  and  visible  signs,  which  shall  be  notified  to  the  enemy 
beforehand. 

Article  28 

It  is  forbidden  to  give  over  to  pillage  even  a  town  or  place  taken  by  storm. 


74  PLENARY  CONFERENCE 

Chapter  II. — Spies 

Article  29 

A  person  can  only  be  considered  a  spy  when,  acting  clandestinely  or  on  false 
pretenses,  he  obtains  or  endeavors  to  obtain  information  in  the  zone  of  operations 
of  a  belligerent,  with  the  intention  of  communicating  it  to  the  hostile  party. 

Thus,  soldiers  not  wearing  a  disguise  who  have  penetrated  into  the  zone  of 
operations  of  the  hostile  army,  for  the  purpose  of  obtaining  information,  are  not 
considered  spies.  Similarly,  the  following  are  not  considered  spies :  Soldiers  and 
civilians  carrying  out  their  mission  openly,  entrusted  with  the  delivery  of  dis- 
patches intended  either  for  their  own  or  for  the  enemy's  army.  To  this  class 
belong  likewise  persons  sent  in  balloons  for  the  purpose  of  carrying  dispatches 
and,  generally,  of  maintaining  communications  between  the  different  parts  of 
an  army  or  a  territory. 

Article  30 
A  spy  taken  in  the  act  shall  not  be  punished  without  previous  trial. 

Article  31 
A  spy  who,  after  rejoining  the  army  to  which  he  belongs,  is  subsequently 
captured  by  the  enemy,  is  treated  as  a  prisoner  of  war,  and  incurs  no  responsi- 
bility for  his  previous  acts  of  espionage. 

[52]  Chapter  III. — Parlementaires 

Article  32 

A  person  is  regarded  as  a  parlementaire  who  has  been  authorized  by  one 

of  the  belligerents  to  enter  into  communication  with  the  other,  and  who  advances 

bearing  a  white  flag.     He  has  a  right  to  inviolability,  as  well  as  the  trumpeter, 

bugler  or  drummer,  the  flagbearer  and  the  interpreter  who  may  accompany  him. 

Article  33 

The  commander  to  whom  a  parlementaire  is  sent  is  not  in  all  cases  obliged 
to  receive  him. 

He  may  take  all  necessary  steps  in  order  to  prevent  the  parlementaire  taking 
advantage  of  his  mission  to  obtain  information. 

In  case  of  abuse,  he  has  the  right  to  detain  the  parlementaire  temporarily. 

Article  34 
The  parlementaire  loses  his  rights  of  inviolability  if  it  is  proved  in  a  clear 
and  incontestable  manner  that  he  has  taken  advantage  of  his  privileged  position 
to  provoke  or  commit  an  act  of  treason. 

Chapter  IV. — Capitulations 

Article  35 
Capitulations  agreed  upon  between  the  contracting  parties  must  take  into 
account  the  rules  of  military  honor. 

Once  settled,  they  must  be  scrupulously  observed  by  both  parties. 


FIFTH  MEETING,  JULY  5,  1899 :  ANNEXES  75 

Chapter  V. — Armistices 

Article  36 

An  armistice  suspends  military  operations  by  mutual  agreement  between  the 
belligerent  parties.  If  its  duration  is  not  defined,  the  belligerent  parties  may 
resume  operations  at  any  time,  provided  always  that  the  enemy  is  warned  within 
the  time  agreed  upon,  in  accordance  with  the  terms  of  the  armistice. 

Article  37 

An  armistice  may  be  general  or  local.  The  first  suspends  the  military  opera- 
tions of  the  belligerent  States  everywhere ;  the  second  only  between  certain  frac- 
tions of  the  belligerent  armies  and  within  a  fixed  radius. 

Article  38 

An  armistice  must  be  notified  officially  and  in  good  time  to  the  competent 
authorities  and  to  the  troops.  Hostilities  are  suspended  immediately  after  the 
notification,  or  on  the  date  fixed. 

Article  39 

It  rests  with  the  contracting  parties  to  settle,  in  the  terms  of  the  armistice, 
what  communications  may  be  held  in  the  theatre  of  war  with  the  populations  and 
between  them. 

Article  40 

Any  serious  violation  of  the  armistice  by  one  of  the  parties  gives  the  other 
party  the  right  of  denouncing  it,  and  even,  in  cases  of  urgency,  of  recommenc- 
ing hostilities  immediately. 

Article  41 

A  violation  of  the  terms  of  the  armistice  by  private  persons  acting  on  their 
own  initiative  only  entitles  the  injured  party  to  demand  the  punishment  of  the 
offenders  and,  if  necessary,  compensation  for  the  losses  sustained. 

[53]     SECTION  III. — On  Military  Authority  over  the  Territory 

OF  the  Hostile  State 

Article  42 

Territory  is  considered  occupied  when  it  is  actually  placed  under  the 
authority  of  the  hostile  army. 

The  occupation  extends  only  to  the  territory  where  such  authority  has 
been  established  and  can  be  exercised. 

Article  43 

The  authority  of  the  legitimate  Power  having  in  fact  passed  into  the  hands 
of  the  occupant,  the  latter  shall  take  all  the  measures  in  his  power  to  restore 
and  ensure,  as  far  as  possible,  public  order  and  safety,  while  respecting,  unless 
absolutely  prevented,  the  laws  in  force  in  the  country. 


76  PLENARY  CONFERENCE 

Article  44 

It  is  forbidden  to  force  the  population  of  the  occupied  territory  to  take 
part  in  mihtary  operations  against  its  own  country. 

Article  45 

It  is  forbidden  to  compel  the  population  of  occupied  territory  to  swear  alle- 
giance to  the  hostile  Power. 

Article  46 

Family  honor  and  rights,  the  lives  of  persons,  and  private  property,  as 
well  as  religious  convictions  and  practice,  must  be  respected. 
Private  property  can  not  be  confiscated. 

Article  47 
Pillage  is  formally  forbidden. 

Article  48 

If,  in  the  territory  occupied,  the  occupant  collects  the  taxes,  dues,  and  tolls 
imposed  for  the  benefit  of  the  State,  he  shall  do  so,  as  far  as  possible,  in  accord- 
ance with  the  rules  of  assessment  and  incidence  in  force,  and  shall  in  consequence 
be  bound  to  defray  the  expenses  of  the  administration  of  the  occupied  territory 
to  the  same  extent  as  the  legitimate  Government  was  so  bound. 

Article  49 

If,  in  addition  to  the  taxes  mentioned  in  the  above  article,  the  occupant  levies 
other  money  contributions  in  the  occupied  territory,  it  shall  only  be  for  the  needs 
of  the  army  or  of  the  administration  of  the  territory  in  question. 

Article  50 

No  general  penalty,  pecuniary  or  otherwise,  shall  be  inflicted  upon  the  popu- 
lation on  account  of  the  acts  of  individuals  for  which  they  can  not  be  regarded 
as  jointly  and  severally  responsible. 

Article  51 

No  contribution  shall  be  collected  except  under  a  written  order,  and  on 
the  responsibility  of  the  commander  in  chief. 

The  collection  of  the  said  contribution  shall  only  be  effected  as  far  as 
possible  in  accordance  with  the  rules  of  assessment  and  incidence  of  the  taxes 
in  force. 

For  every  contribution  a  receipt  shall  be  given  to  the  contributors. 

Article  52 

Requisitions  in  kind  and  services  shall  not  be  demanded  from  municipalities 
or  inhabitants  except  for  the  needs  of  the  army  of  occupation.  They  shall  be 
in  proportion  to  the  resources  of  the  country,  and  of  such  a  nature  as  not  to 
involve  the  population  in  the  obligation  of  taking  part  in  the  operations  of  the 
war  against  their  country. 


FIFTH  MEETING,  JULY  5,  1899:  ANNEXES  yj 

[54]   Such  requisitions  and  services  shall  only  be  demanded  on  the  authority 
of  the  commander  in  the  locality  occupied. 

Contributions  in  kind  shall,  as  far  as  possible,  be  paid  for  in  cash;  if  not,  a 
receipt  shall  be  given. 

Article  53 

An  army  of  occupation  can  only  take  possession  of  cash,  funds,  and  realiz- 
able securities  which  are  strictly  the  property  of  the  State,  depots  of  arms,  means 
of  transport,  stores  and  supplies,  and,  generally,  all  movable  property  belong- 
ing to  the  State  which  may  be  used  for  the  operations  of  the  war. 

Railway  plant,  land  telegraphs,  including  shore  ends  of  cables,  telephones, 
steamers  and  other  ships,  apart  from  cases  governed  by  maritime  law,  as  well  as 
depots  of  arms  and  generally  all  kinds  of  munitions  of  war,  even  though  belong- 
ing to  companies  or  to  private  persons,  are  likewise  material  which  may  serve 
for  military  operations,  but  they  must  be  restored  and  compensation  fixed  when 
peace  is  made. 

Article  54 

The  plant  of  railways  coming  from  neutral  States,  whether  the  property 
of  those  States  or  of  companies  or  of  private  persons,  shall  be  sent  back  to  them 
as  soon  as  possible. 

Article  55 

The  occupying  State  shall  be  regarded  only  as  administrator  and  usufructuary 
of  public  buildings,  real  estate,  forests,  and  agricultural  estates  belonging  to  the 
hostile  State,  and  situated  in  the  occupied  country.  It  must  safeguard  the 
capital  of  these  properties,  and  administer  them  in  accordance  with  the  rules  of 
usufruct. 

Article  56 

The  property  of  municipalities,  that  of  institutions  dedicated  to  religion, 
charity  and  education,  the  arts  and  sciences,  even  when  State  property,  shall  be 
treated  as  private  property. 

All  seizure  or  destruction  of,  or  wilful  damage  to,  institutions  of  this  char- 
acter, historic  monuments,  works  of  art  and  science,  is  forbidden,  and  should 
be  made  the  subject  of  legal  proceedings. 


SECTION  IV. — On  the  Internment  of  Belligerents  and  the  Care  of 
THE  Wounded  in  Neutral  Countries 

Article  57 

A  neutral  State  which  receives  on  its  territory  troops  belonging  to  the  bel- 
ligerent armies  shall  intern  them,  as  far  as  possible,  at  a  distance  from  the 
theatre  of  war. 

It  may  keep  them  in  camps,  and  even  confine  them  in  fortresses  or  in 
places  set  apart  for  this  purpose. 

It  shall  decide  whether  officers  can  be  left  at  liberty  on  giving  their  parole 
not  to  leave  the  neutral  territory  without  permission. 


78  PLENARY  CONFERENCE 

Article  58 

In  the  absence  of  a  special  convention,  the  neutral  State  shall  supply  the 
interned  with  the  food,  clothing,  and  relief  required  by  humanity. 

At  the  conclusion  of  peace  the  expenses  caused  by  the  internment  shall  be 
made  good. 

Article  59 

A  neutral  State  may  authorize  the  passage  over  its  territory  of  wounded 
or  sick  belonging  to  the  belligerent  armies,  on  condition  that  the  trains  bringing 
them  shall  carry  neither  personnel  nor  material  of  war.  In  such  a  case,  the 
neutral  State  is  bound  to  take  whatever  measures  of  safety  and  control  are  neces- 
sary for  the  purpose. 

Wounded  or  sick  brought  under  these  conditions  into  neutral  territory  by 
one  of  the  belligerents,  and  belonging  to  the  hostile  party,  must  be  guarded  by 
the  neutral  State,  so  as  to  ensure  their  not  taking  part  again  in  the  operations 
of  the  war.  The  same  duty  shall  devolve  on  the  neutral  State  with  regard  to 
wounded  or  sick  of  the  other  army  who  may  be  committed  to  its  care. 

[55]  Article  60 

The  Geneva  Convention  applies  to  sick  and  wounded  interned  in  neutral 
territory. 


SIXTH  MEETING 

JULY  21,  1899 


His  Excellency  Mr.  Staal  presiding. 

The  meeting  opens  at  2  o'clock.  

The  President  takes  the  chair  and  addresses  the  assembly  in  these  terms: 

Before  passing  to  the  business  on  the  agenda,  I  must  first  discharge  a 
mandate  from  my  august  master,  His  Majesty  the  Emperor  of  All  the  Russias. 

His  Majesty  has  been  profoundly  touched  by  the  sentiments  of  sympathy 
which  have  been  expressed  to  him  on  the  occasion  of  the  misfortune  which  has 
befallen  the  Imperial  family,  and  to  which  the  vice  president  has  given  such 
eloquent  expression. 

My  august  sovereign  has  charged  me  with  conveying  to  the  Conference  his 
thanks  for  this  manifestation  of  condolence. 

The  President  recalls  that  the  first  business  on  the  agenda  is  the  exam- 
ination of  the  report  of  the  First  Commission.  He  thanks  Mr.  van  Karnebeek 
for  undertaking  to  make  this  report. 

The  minutes  of  the  fifth  meeting  which  have  been  printed  and  distributed 
among  the  members,  are  adopted. 

The  Reporter  submits  to  the  Conference  the  first  point  of  the  first  divi- 
sion of  the  report,  as  it  has  been  approved  by  the  First  Commission  the  day 
before. 

It  has  adopted  unanimously  tie  engagement  to  prohibit  the  launching  of 
projectiles  and  explosives  from  balloons,  or  in  other  analogous  new  ways,  for 
a  period  of  five  years. 

The  Reporter  proposes  to  the  Conference,  in  the  name  of  the  Commission, 
to  make  a  declaration  carrying  the  above-mentioned  engagement. 

This  proposal  is  adopted  by  the  Conference  unanimously. 

The  meeting  passes  to  the  second  point:  prohibition  of  the  use  of  projectiles 
which  have  for  their  sole  end  the  spreading  of  asphyxiating  or  deleterious  gases. 

This  engagement  is  adopted  unanimously  less  two  votes  (United  States 
of  America  and  Great  Britain). 

The  Reporter  makes  to  the  Conference  an  identical  proposal  respecting  the 
third  point:  engagement  to  prohibit  the  use  of  bullets  which  expand  and  flatten 
easily  in  the  human  body,  such  as  bullets  with  a  hard  envelope,  which  envelope 
does  not  entirely  cover  the  core  or  is  pierced  with  incisions. 
Captain  Crozier  takes  the  floor  and  speaks  as  follows : 

The  general  principle  touching  the  subject  was  well  stated  at  St.  Petersburg 
in  1868,  viz.,  that  justifiable  limits  would  be  exceeded  by  the  "  use  of  arms  which 
would  aggravate  uselessly  the  sufl"erings  of  men  already  placed  hors  de  combat, 
or  would  render  their  death  inevitable."    The  Convention  of  St.  Petersburg  con- 

79 


80  PLENARY  CONFERENCE 

fined  itself,  then,  to  proscribing  the  violation  of  this  principle,  the  only  one  com- 
prehended at  that  time,  i.e.,  the  use  of  explosive  projectiles  weighing  less  than 
400  grammes. 

It  is  now  desired  to  extend  the  prohibition  to  other  than  explosive  bullets. 
This  covers  the  inventions  having  in  view  the  increase  of  the  shock  produced  by 
the  bullets  of  small  calibres  now  in  use,  and  of  the  smaller  calibres  which  may  be 
adopted. 

In  formulating  a  prohibition  of  this  kind,  what  is  the  object  to  be  kept 
in  view? 
[56]   Evidently  to  forbid  everything,  which,  in  the  direction  of  cruelty,  goes 
beyond  necessity.    And  what  is  necessary?    The  declaration  of  St.  Peters- 
burg says :     "  It  is  sufficient  to  place  hors  de  combat  the  greatest  number  of 
men  possible." 

My  honorable  colleague,  the  delegate  from  Russia,  has  stated  here,  that 
"the  object  of  war  is  to  put  men  hors  de  combat."  For  military  men  there 
can  be  but  one  answer  to  the  question  that  I  have  put,  namely,  that  the  man. 
hit  by  a  bullet  shall  be  placed  hors  de  combat.  With  the  attainment  of  this  object 
in  view,  as  well  as  the  prohibition  of  everything  beyond  it,  I  propose  the  formula 
amended  as  follows: 

The  use  of  bullets  inflicting  wounds  of  useless  cruelty,  such  as  explosive 
bullets,  and  in  general  all  kinds  of  bullets  which  exceed  the  limit  necessary 
for  placing  a  man  hors  de  combat  should  be  forbidden. 

This  formula  clearly  denotes  all  that  the  world  admits  and  all  that  is 
admissible. 

It  has  also  been  stated  that  "ordinary  bullets  suffice  to  place  men  hors  de 
combat." 

There  are  differences  of  opinion  as  to  this,  as  covering  all  cases.  I  can 
speak  of  them  freely  because  the  United  States  are  satisfied  with  their  bullet, 
and  see  no  reason  for  changing  it.  But  whatever  may  be  the  case  with  the 
bullets  actually  in  use,  no  one  can  say  what  will  be  if  the  decrease  of  calibre, 
which  the  Conference  has  not  limited,  shall  continue.  And  here  we  see  the 
weak  point  of  the  article:  it  confines  the  prohibition  to  a  single  class,  viz.:  bullets 
which  expand  or  flatten,  and  gives  as  illustration  certain  details  for  construction 
of  these  bullets: 

The  use  of  bullets  inflicting  wounds  of  useless  cruelty,  such  as  explosive 
bullets,  and  in  general,  every  kind  of  bullets  which  exceeds  the  limit  necessary 
for  placing  a  man  hors  de  combat,  should  be  forbidden. 

The  advantages  of  the  small  calibre  are  well  known ;  flatter  trajectory,  greater 
danger  space,  less  recoil,  and,  particularly,  less  weight  of  ammunition.  Now  if 
any  nation  shall  consider  these  advantages  sufficiently  great  to  wish  to  pass  to 
a  small  calibre,  which  is  to  be  regarded  as  quite  possible,  her  military  experts 
will  at  once  occupy  themselves  with  a  method  of  avoiding  the  principal  disad- 
vantage of  a  smaller  calibre,  i.e.,  the  absence  of  shock  produced  by  the  bullet. 
In  devising  means  to  increase  the  shock  they  will  naturally  examine  the  prohibi- 
tions which  have  been  imposed,  and  they  will  find  that  with  the  exception  of 
the  two  classes,  explosive  bullets  and  bullets  which  expand  or  flatten,  the  field 
is  entirelv  clear.     They  will  see  that  they  can  avoid  the  forbidden  detail  of 


SIXTH  MEETING,  JULY  21,  1899  81 

construction  by  making  a  bullet  with  a  large  part  of  the  envelope  so  thin  as  to 
be  ineffective,  and  that  they  can  avoid  altogether  the  proscribed  classes;  first, 
by  making  a  bullet  such  that  the  point  would  turn  easily  to  one  side  upon  entering 
the  body,  so  as  to  cause  it  to  turn  end  over  end,  revolving  about  its  shorter 
axis  (it  is  well  known  how  easily  a  rifle  projectile  can  be  made  to  act  in  this 
way),  secondly,  by  making  a  ball  of  such  original  form  as,  without  changing  it, 
would  inflict  a  torn  wound.  It  is  useless  to  give  further  examples.  A  technical 
officer  could  spend  an  indefinite  time  in  suggesting  designs  of  bullets,  desperately 
cruel  in  their  effects,  which,  forbidden  by  my  amendment,  would  be  permitted 
under  the  article  as  it  comes  from  the  Commission. 

In  fact  they  would  not  only  be  permitted,  but  one  might  be  driven,  in  the 
effort  to  avoid  the  class  specified  by  the  article  of  the  Commission,  to  the  adop- 
tion of  another  less  humane.  If  the  shocking  power  of  the  bullet  is  to  be  in- 
creased at  all,  and  we  may  be  sure  that  if  found  necessary  it  will  be  done  in  one 
way  or  another,  what  more  humane  method  can  be  imagined  than  to  have  it 
simply  increase  its  size  in  a  regular  manner?  But  this  is  forbidden,  and  conse- 
quently there  is  great  danger  of  some  more  cruel  method  coming  into  use,  when 
there  will  not  be  a  Conference  ready  to  forbid  it.  There  is  always  danger  in  at- 
tempting to  cover  a  principle  by  the  specification  of  details,  for  the  latter  can 
generally  be  avoided  and  the  principle  be  thus  violated. 

It  has  been  stated  in  the  Commission  that  the  language  of  my  proposition 
is  too  vague,  and  that  little  would  be  left  of  the  article  voted  if  it  were  to  be 
amended  in  accordance  therewith.  But  in  reality  it  is  more  restrictive  than 
that  of  the  Commission.  For  this  last,  instead  of  covering  the  principle,  touches 
it  at  one  point  only.  In  the  effort  to  catch  a  single  detail  of  construction,  it 
has  left  the  door  open  to  everything  else  which  ingenuity  may  be  able  to  suggest. 

It  has  been  squarely  stated  that  the  dumdum  bullet  is  the  one  at  which  the 
prohibition  is  aimed. 

I   have  no   commission   for   the  defense   of   the   dumdum   bullet,   about 
[57]  which  I  know  nothing  except  what  I  have  heard  here.    But  we  are  asked 
to  sit  in  judgment  upon  it,  and  for  this  purpose  it  would  seem  that  some 
evidence  is  desirable. 

None,  however,  has  been  presented  up  to  the  present. 

Colonel  GiLiNSKY,  who,  to  his  honor  and  that  of  his  Government,  has  done 
here  so  much  hard  work  in  the  cause  of  humanity,  believes  that  two  wars  where 
this  bullet  was  used,  have  shown  it  to  be  such  as  to  inflict  wounds  of  great  cruelty. 
But  no  facts  have  been  presented  which  might  lead  us  to  share  this  opinion. 

The  only  alleged  evidence  of  which  we  have  heard  at  all  is  that  of  the 
Tubingen  experiments  and  the  asserted  similarity  of  the  bullet  used  therein  with 
the  dumdum.  Now  this  the  British  delegate  has  himself  been  obliged  to  bring 
in,  in  order  that  he  might  deny  it. 

Let  me  call  attention,  however,  to  the  fact  that  under  the  proposed  amend- 
ment the  dumdum  bullet  receives  no  license;  on  the  contrary  it  falls  under  the 
prohibition,  provided  a  case  can  be  made  out  against  it. 

We  are  all  animated  with  the  common  desire  to  prevent  rather  than  to  rail 
against  the  employment  of  weapons  of  useless  cruelty.  As  for  the  efficiency 
of  such  prevention,  I  ask  whether  it  would  not  be  better  to  secure  the  support 
of  domestic  public  opinion  in  a  country  by  the  presentation  to  its  Government  of 
a  case,  supported  by  evidence,  against  any  military  practice,  than  to  risk  arousing 


82  PLENARY  CONFERENCE 

a  national  sentiment  in  support  of  the  practice  by  a  condemnation  of  it  without 
proof  ? 

The  Conference  is  now  approaching  an  end,  and  this  subject  is  the  only 
one  of  actual  practice  upon  which  there  is  division. 

The  division  is  decided ;  it  is  even  acute,  and  it  operates  to  destroy  all  value 
of  the  action  taken. 

I  therefore  ask  the  delegates  who  may  not  have  been  convinced  of  the  im- 
provement in  humane  restrictiveness,  which  the  article  would  acquire  from  the 
proposed  amendment,  to  vote  for  it,  in  order  that  something  tangible  may  be 
secured,  instead  of  the  nothing  which  would  result  from  the  status  quo. 

His  Excellency  Sir  Julian  Pauncefote  supports  the  amendment  of  Captain 
Crozier  and  agrees  with  the  remarks  that  he  has  made. 

Jonkheer  van  Karnebeek  recalls  what  passed  in  the  Commission  on  this 
subject.  The  amendment  has  already  been  presented  by  the  American  delegation 
in  almost  similar  terms,  but  it  had  not  found  sufficient  support,  for  the  majority 
of  the  members  of  the  Commission  had  been  of  opinion  that,  whatever  was  the 
humanitarian  aim  that  inspired  the  motion  concerned,  the  formula  which  ex- 
pressed it  was  too  vague  and  did  not  have  sufficient  range ;  it  was  for  that  reason 
that  on  the  request  of  one  of  the  members,  priority  had  been  given  to  the  original 
text,  which  was  voted  unanimously  with  the  exception  of  two  votes. 

His  Excellency  Sir  Julian  Pauncefote  announces  that  his  Government 
desires  to  make  a  very  important  declaration  on  the  subject  of  dumdum  bullets. 

This  declaration  not  having  yet  been  transmitted,  he  asks  that  the  minutes 
remain  open  for  its  insertion. 

It  is  so  decided.' 

General  den  Beer  Poortugael  does  not  know  whether  it  is  the  intention 
of  the  assembly  to  renew  the  discussion  on  the  question  of  bullets ;  for  his  part, 
he  thought  that  all  that  concerned  this  matter  was  settled;  nevertheless,  if  they 
wished  to  return  to  it,  he  desired  to  remark  that  in  his  opinion,  by  admitting 
the  Crozier  proposal,  the  work  accomplished  would  be  destroyed.  He  thinks, 
like  Mr.  Crozier,  that  the  general  principle  enters  equally  into  his  formula,  but 
it  has,  he  believes,  insufficient  range. 

It  is  a  question  of  a  general  statement  of  a  necessary  limit.  Now  what 
is  understood  by  this  necessary  limit  or  by  needlessly  cruel  wounds?  We  do 
not  know ;  a  criterion  would  be  necessary  in  order  to  be  able  to  determine  it. 
We  must  be  able  to  say:  here  is  a  bullet  entirely  different  from  that  which  has 
been  adopted  heretofore.  There  must  be  a  specified  limit  and  not  a  general 
limit.     Otherwise,  no  result  will  be  reached. 

If  Mr.  Crozier  has  said  that  we  are  here  condemning  the  dumdum  bullet, 

he  is  mistaken.     It  seems  that  it  is  very  difficult  to  condemn  in  advance 

[58]  a  bullet  that  is  not  known.     Action  has  been  taken  in  a  general  way  on 

the  use  of  bullets  with  an  envelope,  whose  envelope  does  not  entirely 

*  This  request  was  withdrawn  by  the  following  letter  addressed  by  Sir  Julian  Paunce- 
fote to  the  president  of  the  Conference : 

"  Sir  Julian  Pauncefote  presents  his  compliments  to  his  Excellency  the  president  of 
the  Peace  Conference,  and  has  the  honor  to  state  that  he  has  received  instructions  from  his 
Government  to  the  effect  that,  in  view  of  the  attitude  of  the  plenary  Conference  at  its 
sitting  of  the  21st  instant,  and  of  the  vote  taken  on  that  occasion  on  the  subject  of  projectiles, 
Her  Majesty's  Government  will  not  avail  themselves  of  the  facilities  accorded  to  them  to 
insert  a  Declaration  in  the  proces-verbal  of  that  sitting." 

The  Hague,  July  27,  1899. 


SIXTH  MEETING,  JULY  21,  1899  83 

cover  the  core  or  is  pierced  with  incisions.  Even  this  wording  has  been  very 
difficult  to  Hght  upon,  and,  in  his  opinion,  it  is  indispensable  to  take  up  its  details. 
On  the  other  hand,  he  admits  that  in  giving  details  there  is  risk  of  running 
counter  to  the  general  principle. 

The  formula  of  the  Commission  has  done  away  with  one  means;  that  is 
already  much,  we  can  not  do  away  with  all  those  which  perhaps  will  be  invented 
in  the  future. 

If  we  do  not  accept  this  formula  we  shall  have  done  nothing. 

Colonel  Gilinsky,  answering  Mr.  Crozier,  states  first  that  the  original  Rus- 
sian proposal  does  not  mention  dumdum  bullets,  although  they  have  been  spoken 
of  in  the  course  of  the  discussion.     He  reads  the  text  of  the  proposal. 

Other  technical  delegates  have  brought  thereto  some  amendments,  and  the 
outcome  has  been  the  adoption  of  the  formula  which  we  find  in  the  report.  Nor 
does  this  formula  mention  the  dumdum  bullet.  It  will  be,  therefore,  for  each 
government  to  examine  and  decide  whether  any  given  projectile  that  is  used  or 
proposed,  enters  into  the  category  covered  by  the  formula. 

Bullets  of  this  kind  inflict  needlessly  cruel  wounds  because  the  incision 
permits  the  lead  to  come  out  of  the  hard  envelope  and  to  expand ;  and  not  only 
do  these  projectiles  wound,  but  they  carry  away  bits  of  flesh.  Such  an  eflfect 
goes  beyond  the  aim  of  war  which  is  merely  to  place  hors  de  combat.  The 
bullets  of  small  calibre  such  as  those  of  7^2  mm.  whose  effects  he  declares  known, 
suffice  to  produce  this  result. 

The  contrary  has  indeed  been  contended,  but  the  cases  where  these  projectiles 
have  been  insufficient  only  constitute  exceptions.  They  happen  if  the  bullet 
touches  only  the  muscles  or  soft  parts  of  the  body,  and  not  the  bone,  which  is 
comparatively  rare.  In  that  case,  it  may  indeed  happen  that  a  man  mortally 
wounded  can  still  advance  for  a  certain  time  and  then  fall  dead,  without  knowing 
that  he  has  been  hit. 

At  St.  Petersburg  in  1868,  something  already  in  existence  was  under  con- 
templation.    It  was  desired  to  prohibit  bullets  which  really  existed. 

We  desire  to  do  the  same  here :  To  prohibit  the  use  of  a  certain  category 
of  bullets  which  have  already  been  manufactured.  We  do  not  know  what  is 
going  to  be  invented.  The  inventions  of  the  future  will  perhaps  render  a  new 
prohibition  necessary. 

It  is  not  proper  to  make  distinction  between  civilized  and  savage  tribes. 
There  is  no  objection  to  the  term  "  needlessly  cruel  "  being  introduced  in  the 
formula,  but  with  that  exception  it  should  remain  untouched.  This  is  the  formula 
which  has  been  adopted  after  mature  deliberations  in  which  all  the  technical 
experts  have  taken  part,  and  it  would  be  impossible  for  the  Conference  to  reverse 
itself. 

Captain  Crozier  states  that  in  his  opinion  the  formula  presents  three  ob- 
jections : 

1.  It  does  not  prohibit  bullets  which  exceed  the  allowed  limits  except  in 
one  case; 

2.  It  prohibits  bullets  which  expand.  Now,  it  is  quite  possible  that  a 
bullet  may  be  invented  that  expands  uniformly  and  that  consequently  would 
not  produce  needlessly  cruel  wounds.  It  would  not  be  necessary,  then,  to  forbid 
its  use. 

3.  The  minutes  state  that  the  formula  is  intended  to  forbid  the  use  of 


84  PLENARY  CONFERENCE 

the  bullet  called  "  dumdum,"  although  that  word  is  not  mentioned  in  the  text. 
Now,  it  is  condemned  without  proof,  for  there  has  been  no  effort  made  to  show 
that  it  is  needlessly  cruel.  He  reads  in  support  of  his  words  a  passage  from  the 
report  of  General  den  Beer  Poortugael  (page  3,  paragraph  2),  who  himself 
speaks  of  dumdum  bullets,  and  it  has  been  stated  on  several  occasions  that  those 
are  the  projectiles  that  it  is  sought  to  prohibit.  He  observes  that  so  far  as  the 
United  States  is  concerned,  they  employ  a  gun  of  7^  mm.  calibre. 

They  are  satisfied  with  it  and  do  not  desire  to  change. 

He  says  that,  without  the  intention  of  its  authors,  the  proposal  of  the  Com- 
mission is  rather  a  prohibition  of  a  gun  of  small  calibre  than  a  prohibition  of 
the  use  of  an  arm  that  is  not  humane,  and  he  reads  on  this  point  a  passage  from 
the  report  of  General  den  Beer  Poortugael  (page  3,  last  paragraph),  in  which 
is  found  the  remark  of  Colonel  Gilinsky  that  the  bullet  of  small  calibre  does 
not  stop  the  attack  of  a  civilized  army,  for  such  is  the  effect  of  the  small  calibre ; 
that  there  is  therefore  an  argument  in  favor  of  larger  calibres;  and  that  in  di- 
minishing continually  the  calibre,  one  arrives  at  a  calibre  too  small  and  the 
necessity  of  using  dumdum  bullets.  He  remarks  that  from  these  words  it  may 
be  seen  that  the  prohibition  of  the  class  of  bullets  mentioned  in  the  article 
and  that  of  the  gun  of  small  calibre  are  so  intimately  united  that  one  can  scarcely 
be  supported  without  at  the  same  time  and  in  spite  of  one's  self,  making  argu- 
ments in  favor  of  the  other.  Now  the  majority  of  Powers  have  declared  them- 
selves against  limitation  of  calibre. 

Answering  Mr.  van  Karnebeek,  Captain  Crozier  recalls  that  when  he  pre- 
sented his  amendment  to  the  subcommission  that  amendment  was  not  put  to 

vote.  Action  was  limited  to  voting  on  the  original  proposal. 
[59]  This  procedure  has  certainly  had  the  advantage  in  hastening  the  dispatch 
of  business,  but  in  his  opinion  there  is  something  more  important  to  be 
done,  to  record  the  opinion  of  members  on  every  question  presented.  Now 
the  subcommission  has  not  had  an  opportunity  of  expressing  an  opinion  on  his 
amendment,  and  it  is  for  this  reason  that  he  recurs  to  it  and  asks  that  it  now  be 
put  to  vote  before  the  main  question. 

Colonel  Gilinsky  repeats  that  the  bullets  covered  by  the  formula  of  the 
Commission  are  known ;  their  effects  in  two  recent  wars  can  be  perfectly  well 
stated,  although  there  does  not  exist  any  official  communications  on  the  subject. 

As  to  bullets  which  may  be  invented  in  the  future,  let  them  be  taken  up 
when  the  time  comes. 

Captain  Crozier  has  spoken  of  the  eventual  invention  of  bullets  which  ex- 
pand uniformly.  That  supposition  is  admissible ;  but  even  bullets  of  that  category 
may  inflict  wounds  that  are  needlessly  cruel. 

The  Russian  formula  has  in  view  only  bullets  already  known.  As  he  has 
already  stated,  bullets  of  small  calibre  check  in  general  an  attack.  If  the  present 
calibre  is  diminished  further,  perhaps  the  projectile  will  no  longer  have  the 
same  effect. 

A  new  problem  will  then  arise. 

But  if  these  bullets  do  not  cause  a  shock  and  permit  soldiers  of  exceptional 
bravery  to  advance,  is  it  necessary  to  invent  bullets  that  are  more  cruel,  in  order 
to  combat  these  brave  men? 

Mr.  Crozier  has  said  that  there  was  not  enough  attention  given  the  question 
in  the  subcommission,  that  action  was  taken  too  hastily.     Two  months  were 


SIXTH  MEETING,  JULY  21,  1899  85 

taken  up  with  it  in  the  subcommission  and  the  question  was  conscientiously  studied 
in  the  Commission  and  the  formula  worked  out  in  detail.  It  is  necessary,  then, 
not  to  act  hastily  now  and  change  in  one  meeting  the  result  of  the  work  of 
two  months. 

Captain  Crozier  asks  precedence  for  his  formula ;  but  Mr.  Gilinsky  insists 
that  it  be  given  that  of  the  Commission. 

Jonkheer  van  Kamebeek,  speaking  from  his  experience  in  parliamentary 
law,  says  that  Mr.  Crozier  complains  that  his  formula  was  not  voted  on  first. 
Certainly,  according  to  the  rules,  an  amendment  has  priority  over  original  motion. 

However,  here  we  are  dealing  not  with  an  amendment,  but  with  a  new  pro- 
posal. He  recalls  that  Mr.  Beernaert,  whose  high  authority  in  parliamentary 
law  cannot  be  questioned,  has  shown  that  he  was  of  the  same  opinion  as  himself, 
in  giving  precedence  to  the  original  motion. 

When  two  proposals  are  pending,  parliamentary  usage  requires  that  prefer- 
ence be  given  to  the  formula  that  has  the  greatest  scope. 

H  this  assembly  desires  to  depart  from  this  principle,  he  sees  in  that  no 
inconvenience,  but,  according  to  him,  it  would  be  incorrect  to  proceed  in  that 
way. 

Captain  Crozier  insists  that  his  formula  constitutes  an  amendment.  He 
explains  that  while  putting  it  to  vote  first  it  is  necessary  to  bear  in  mind  that 
a  second  vote  will  be  held  on  the  proposition,  amended  or  not  amended  as  may 
be,  and  that  the  two  votes  together  will  place  the  opinion  of  every  delegate  defi- 
nitely on  record. 

Mr.  Raffalovich  moves  to  put  to  vote  the  question  of  precedence. 

Mr.  Bille  states  that  on  the  vote  in  the  Commission  for  the  original  text,  he 
did  not  intend  to  condemn  dumdum  bullets,  which  are  not  familiar  to  him  and 
whose  cruel  effects  do  not  appear  to  him  to  be  demonstrated. 

His  Excellency  Mr.  White  regrets  exceedingly  that  the  delegation  of  the 
United  States  cannot  agree  with  the  Commission  on  this  subject. 

He  begins  by  saying  that  he  addresses  the  Conference  without  the  least 
pretension  of  being  considered  an  expert  on  the  subject.  He  has  not  the  slight- 
est technical  knowledge  of  projectiles  or  of  arms  of  any  kind;  but  he  deems  it 
proper  to  intervene  in  the  debate  to  declare  first  that  the  Government  of  the 
United  States  has  not  made  use  up  to  the  present  time,  does  not  make  use 
now,  and  has  not  the  intention  of  making  use,  of  any  other  bullet  than  that 
used  by  other  civilized  nations.  He  then  declares  that  the  United  States  has 
not  the  intention  to  use  in  the  future  bullets  which  are  not  deemed  permissible 
by  the  common  agreement  of  the  Powers. 

After  this  preliminary  statement,  his  Excellency  Mr.  White  points  out  the 
weak  point,  as  it  seems  to  him,  of  the  proposition  of  Colonel  Gilinsky.  This 
proposition  in  fixing  in  a  special  manner  the  details  of  construction  of  a  projectile 
that  produces  needlessly  cruel  wounds,  will  supply  to  belligerents  in  the  first 
prolonged  war  the  opportunity  of  getting  rid  of  this  restriction  or  of  twisting 
its  stipulations. 

Belligerents  will  be  more  anxious  to  conform  to  the  letter  of  the  prohibition 
than  to  avoid  evils  that  it  has  been  desired  to  combat  by  the  proposition  in 

question. 
[60]  In  the  United  States,  in  a  recent  civil  war  which  he  regrets  personally  and 
which,  thanks  to  God,  is  terminated,  there  was  some  experience  with  the 


86  PLENARY  CONFERENCE 

inefficacy  of  the  modern  bullet  of  small  calibre.  A  case  is  recorded  of  a  soldiei 
who,  although  pierced  by  four  bullets,  continued  to  fight  and  to-day  is  in  the 
best  of  health. 

The  proposal  of  the  report  would  not  prevent  nations  from  changing  the 
bullets  at  present  in  use  or  from  making  them  still  more  cruel;  this  is  a  case 
in  which  the  letter  kills  and  the  spirit  gives  life ;  the  Conference  will  see  whether 
it  can  condemn  a  special  type  of  bullet  without  at  the  same  time  adopting  the 
more  extended  principle  of  the  Crozier  proposition.  Mr.  White  suggests,  there- 
fore, reference  to  the  Commission,  in  order  that  the  latter  may  find  a  formula 
to  which  the  represented  countries  can  adhere. 

General  den  Beer  Poortugael  contends  that  the  gun  of  small  calibre  is  suffi- 
cient to  stop  the  attack  of  the  enemy.  He  cites  a  recent  example  taken  from 
the  Achin  War. 

Colonel  Gilinsky  deems  it  his  duty  to  declare  that  he  regrets  that  the  United 
States  cannot  agree  with  the  majority.  He,  too,  has  seen  the  last  war  and 
knows  that  bullets  of  7^  mm.  calibre  had  an  efltect  sufficient  to  stop  the  attack 
very  well. 

He  maintains  that  it  is  best  to  deal  here  with  existing  projectiles  and  not 
with  future  inventions  that  are  at  present  unknown. 

The  examples  cited  by  the  American  delegate  do  not  appear  to  him  con- 
clusive; they  are  only  exceptional  cases  which  prove  nothing.  He  could  like- 
wise recall  that  a  general,  General  de  Galliffet,  survived  a  serious  wound  in  the 
stomach  produced  by  the  explosion  of  a  shell.  He  had  the  courage  and  strength 
after  he  was  wounded  to  reach  the  ambulance  alone.  Shall  we  conclude,  then, 
that  shells  are  innocuous? 

He  hopes  that  the  Conference  will  have  full  confidence  in  the  work  of  the 
Commission  and  will  in  this  meeting  definitely  decide  the  question  by  adopting  the 
formula  accepted  by  the  Commission. 

Captain  Mahan  says  that,  if  Colonel  Gilinsky  has  contended  that  we  ought 
to  deal  here  only  with  existing  projectiles,  he  must  object  that  that  argument  has 
not  been  taken  into  account  as  respects  points  1  and  2. 

According  to  him,  the  question  can  be  summed  up  as  follows:  In  order 
to  reach  an  end  that  we  all  approve,  is  it  better  to  adopt  a  general  principle 
or  to  vote  on  a  few  details  that  tend  only  toward  a  certain  point? 

Colonel  Gilinsky  answers  that  launching  projectiles  from  balloons  is  an 
existing  fact,  since  it  is  under  study  in  England  and  in  several  other  coun- 
tries. As  to  bullets,  the  accepted  formula  has  in  view  the  general  principle; 
prohibition  of  bullets  which  expand  and  flatten.  But  it  is  necessary  to  define 
the  details  that  are  well  known,  otherwise  it  would  not  be  a  formula  but  a 
phrase. 

Jonkheer  van  Karnebeek  repeats  that  a  new  proposition  is  here  being  dealt 
with. 

He  insists  on  this  point  and  maintains  categorically  that  it  is  in  order  to 
vote  first  on  the  original  proposition. 

Count  de  Macedo  declares  himself  in  favor  of  Mr.  White's  proposal ;  he 
abstained  from  voting  in  the  Commission  because  he  did  not  have  sufficient  light 
on  the  question.  Now,  the  declaration  announced  by  Sir  Julian  Pauncefote 
might  furnish  some ;  in  his  opinion  it  is  better  then  to  wait. 

The  motion  of  His  Excellency  Mr.  White  is  put  to  vote. 


SIXTH  MEETING,  JULY  21,  1899  87 

The  reference  to  the  Commission  is  rejected  by  20  votes  to  5. 

Voting  for  the  reference:  United  States,  Denmark,  Great  Britain,  Greece, 
Portugal. 

Luxemburg  was  not  present. 

The  President  suggests  voting  on  the  formula  of  the  Commission. 

General  Sir  John  Ardagh  and  Captain  Crozier  protest. 

Captain  Crozier  insists  on  priority  being  given  his  amendment  in  order 
to  furnish  the  Commission  an  opportunity  of  placing  itself  on  record  on  the 
subject. 

The  President  declares  that,  in  a  conciliatory  spirit,  he  is  ready  to  have  a 
vote  first  on  the  American  formula. 

His  Excellency  Sir  Julian  Pauncefote  remarks  that  in  all  European  parlia- 
ments it  is  the  rule  to  vote  first  on  amendments.  Now,  the  American  and  English 
delegations  are  agreed  that  the  Crozier  formula  is  an  amendment. 

According  to  Mr.  Seth  Low,  the  American  proposition  is  a  subsequent  prop- 
osition ("substitute")  ;  it  would  be  the  rule  in  the  American  Congress  to  vote 
on  it  before  the  original  motion,  otherwise,  the  true  sentiments  of  the  majority 

would  never  be  obtained. 
[61]  Count  de  Macedo  declares  that  he  will  vote  for  the  American  proposal; 

but  this  vote  will  not  signify  that  he  disapproves  the  original  proposal. 

Mr.  Rolin  considers  it  impossible  for  the  delegates  who  have  voted  on  the 
regulation  of  the  laws  of  war  to  place  themselves  on  record  as  against  the  adop- 
tion of  the  Crozier  proposition  which  scarcely  does  more  than  repeat  one  of 
the  provisions  of  those  regulations ;  under  these  conditions  he  fears  that  the  vote 
will  give  rise  to  misunderstanding  and  he  asks  that  it  be  permitted  him,  in  case 
the  Crozier  proposition  is  adopted,  to  take  up  the  proposition  of  the  Commission 
as  an  additional  amendment. 

Mr.  Raffalovich  supports  this  proposal. 

Colonel  Coanda  is  of  opinion  that  it  would  be  better  to  vote  first  on  the 
draft  which  views  the  humanitarian  aim  in  a  general  way,  and  then  on  that  of 
the  formula  which  contains  the  details. 

General  Mounier  remarks  that  many  difficulties  would  be  encountered  by  ac- 
cepting the  formula  of  Captain  Crozier.  The  formula  of  the  Commission  has  in 
view  bullets  which  are  already  known,  whereas  he  does  not  positively  know 
what  kind  of  projectiles  the  American  delegate  wishes  to  prohibit. 

Mr.  Bille  finds  the  expression  "  limit  necessary  to  put  a  man  hors  de  combat " 
sufficiently  clear. 

Jonkheer  van  Karnebeek  is  of  opinion  that  it  is  for  the  Conference  to  settle 
the  question  by  voting  on  priority. 

Mr.  Beldiman  makes  the  same  proposal. 

The  question  of  priority  is  put  to  vote. 

The  following  eight  states  vote  for  the  priority  of  the  American  formula: 
United  States,  Belgium,  China,  Denmark,  Great  Britain,  Greece,  Portugal  and 
Serbia. 

The  other  seventeen  states  vote  against  it. 

Luxemburg  did  not  take  part  in  the  vote. 

Consequently,  the  formula  of  the  report  is  put  to  vote  and  adopted  unani- 
mously with  the  exception  of  two  votes  (United  States  and  Great  Britain)  and 
one  abstention  (Portugal).     Luxemburg  was  not  present. 


88  PLENARY  CONFERENCE 

Divisions  II,  III,  and  IV  of  the  report  are  adopted  unanimously. 

A  letter  is  read,  addressed  by  the  president  of  the  drafting  committee  of  the 
Red  Cross  subcommission,  by  which  Admiral  Sir  John  Fisher  brings  to  the 
knowledge  of  Mr.  Martens  that  the  American  delegation  has  withdrawn  the 
three  additional  articles  that  it  had  proposed  to  add  to  the  ten  articles  voted  by  the 
Conference  in  the  meeting  of  June  20. 

Captain  Mahan  makes  the  following  statement  on  this  subject: 

The  delegation  of  the  United  States  has  directed  me  to  say  that  the  three 
additional  articles  proposed  by  it  have  been  withdrawn,  not  because  of  a  change 
of  opinion  on  this  subject  of  the  propriety  of  providing  for  the  cases  to  which 
they  relate  and  which  will  doubtless  arise,  but  in  furtherance  of  their  desire 
to  facilitate  the  conclusion  of  the  work  of  the  Conference. 

The  delegation  wishes  it  understood  that  it  accepts  only  tentatively  the 
ten  articles,  although  it  deems  them  materially  defective  in  so  far  as  they  do 
not  provide  for  the  cases  mentioned,  and  under  reservation  of  the  subsequent  ap- 
proval of  its  Government,  to  which  it  reserves  full  liberty  of  action.  Moreover,, 
it  is  understood  that  it  will  have  to  communicate  to  its  Government  without  any 
restriction  the  doubts  which  it  feels,  while  adding  such  comments  as  it  may 
deem  necessary. 

The  meeting  adjourns. 


Annex  to  the  Minutes  of  the  Sixth  Meeting,  July  21 

REPORT  TO  THE  CONFERENCE 

It  has  been  the  work  of  the  First  Commission  to  examine  the  first  four 
topics  of  the  circular  of  his  Excellency  Count  Mouravieff.    For  the  purpose  of 

studying  the  second,  third,  and  fourth  questions,  which  relate  to  engines 
[62]  of  warfare,  two  subcommissions  were  formed,  one  for  military  matters, 

the  other  for  naval ;  while  the  first  topic  of  Count  Mouravieff,  limitation 
of  armaments,  was  reserved  for  the  full  Commission. 

I.  The  labors  of  these  two  subcommissions  have  resulted  in  bringing  out 
only  three  points  which  could  secure  an  affirmative  vote  by  the  Commission  in 
favor  of  international  engagements : 

1.  A  prohibition  against  launching  projectiles  and  explosives  from  bal- 
loons, or  by  other  new  methods  of  similar  nature. 

This  agreement,  which  is  only  for  a  term  of  five  years,  was  adopted  by 
a  unanimous  vote. 

2.  A  prohibition  of  the  use  of  projectiles,  the  sole  object  of  which  is 
the  diffusion  of  asphyxiating  or  deleterious  gases. 

This  lacked  one  vote  of  unanimity ;  but  six  of  the  affirmative  votes  were 
thus  cast  only  on  condition  of  unanimity. 

3.  A  prohibition  of  the  use  of  bullets  which  expand  or  flatten  easily 
in  the  human  body,  such  as  bullets  with  a  hard  envelope  which  does  not 
entirely  cover  the  core  or  is  pierced  with  incisions. 


SIXTH  MEETING,  JULY  21,  1899:  ANNEX  89 

The  Commission,  consequently,  proposes  to  the  Conference  a  Declaration  or 
an  agreement  carrying  an  engagement  on  each  of  the  three  points  mentioned.  It 
is  unanimous  in  favoring  the  first.  As  to  the  second,  the  vote  taken  in  the 
Commission  stood  seventeen  votes  in  favor  (Germany,  Austria-Hungary,  Den- 
mark, Spain,  France,  Italy,  Japan  [upon  condition  of  unanimity],  Montenegro, 
Netherlands,  Portugal,  Roumania,  Russia,  Serbia,  Siam,  Switzerland,  Turkey, 
Bulgaria),  against  two  (United  States  of  America  and  Great  Britain).  It  sup- 
ports the  third  by  a  vote  of  sixteen  (Germany,  Austria-Hungary,  Denmark,  Spain, 
France,  Italy,  Japan,  Montenegro,  Netherlands,  Roumania,  Russia,  Serbia,  Siam, 
Switzerland,  Turkey,  Bulgaria),  against  two  (United  States  of  America  and 
Great  Britain).     Portugal  did  not  vote. 

II.  In  view  of  the  important  bearing  of  these  three  topics  on  budgets,  the 
two  subcommissions  spent  a  long  time  trying  to  reach  some  agreement  to  prevent, 
if  only  for  a  limited  time,  the  introduction  of  new  types  and  calibres  of  rifles 
and  cannon;  but  the  more  or  less  detailed  propositions  discussed  all  encountered 
objections,  partly  based  on  the  impossibility  of  obtaining  before  this  Conference 
adjourns  instructions  sufficiently  precise  for  decisions  which  would  have  practical 
value.  Examination  of  the  various  proposals  advanced  has  without  exception 
shown  that  a  determination  of  these  questions  cannot  be  had  without  a  previous 
technical  study  in  most  of  the  countries,  made  with  minuteness  and  based  on 
tests. 

Confronted  by  this  difficulty,  the  Commission  has  had  to  confine  itself 
to  proposing  to  the  Conference  that  it  recommend  to  the  Governments  represented 
that  they  undertake,  each  in  its  own  way,  a  study  of  this  problem,  especially  with 
reference  to  rifles  and  naval  guns,  in  order  to  find,  if  possible,  a  solution  that 
would  receive  unanimous  acceptance,  and  might  be  the  subject  of  an  engagement 
in  a  future  Conference.  Perhaps  the  debates  recorded  in  the  minutes  of  the  two 
.subcommissions  may  be  of  use  in  these  studies. 

This  proposal  received  the  unanimous  vote  of  the  Commission. 

III,  An  examination  no  less  conscientious  has  been  given  to  the  possibility 
of  fixing  the  effective  military  and  naval  forces  and  also  the  military  budgets 
pertaining  to  them. 

Propositions  to  that  end  were  submitted  by  Russia.  The  first  proposed  to 
fix  for  a  term  of  five  years  the  present  number  of  troops  maintained  in  each 
mother  country,  that  is  to  say,  colonial  troops  not  being  included,  and  to  limit 
for  the  same  period  the  military  budgets  to  their  totals  at  the  present  time. 

This  proposition  was  referred  to  the  first  subcommission,  where  it  was  first 
examined  and  discussed  in  a  special  technical  committee  composed  of  Colonel 
Gross  von  Schwarzkopf,  Captain  Crozier,  Lieutenant  Colonel  von  Khuepach, 
General  Mounier,  General  Sir  John  Ardagh,  General  Zuccari,  Colonel  Coanda, 
Colonel  GiLiNSKY,  and  Colonel  Brandstrom.  This  committee  after  a  thorough 
discussion  reported  that,  with  the  exception  of  Colonel  Gilinsky,  they  were 
unanimously  of  the  opinion: 

First,  that  it  would  be  very  difficult  to  fix,  even  for  a  term  of  five  years,  the 
number  of  effectives  without  regulating  at  the  same  time  other  factors  of  national 
•defense ; 

Secondly,  that  it  would  be  quite  as  difficult  to  regulate  by  an  international 


90  PLENARY  CONFERENCE 

agreement  the  factors  of  this  defense,  as  it  is  organized  in  every  country  upon  a 

different  principle. 
[63]  Hence,  the  committee  expressed  its  regret  that  it  could  not  advise  acceptance 
of  the  proposition;  but  the  majority  of  its  members  thought  that  a  more 
thorough  study  of  the  question  by  the  Governments  themselves  would  be  desirable. 

In  view  of  this  report,  the  Commission,  to  its  great  regret,  is  able  only  to  give 
explanation  of  the  impossibility  of  arriving,  in  this  Conference,  at  a  positive  and 
immediate  agreement  upon  the  subject  of  effective  forces  and  military  budgets, 
but  it  adds  that  it  hopes  that  the  Governments  themselves  will  resume  the  study 
of  the  questions  raised  in  the  first  topic  of  the  circular  of  Count  Mouravieff. 

The  belief  that  from  a  general  point  of  view  it  is  nevertheless  important  to 
place  a  check  upon  military  armaments  and  to  urge  that  the  solution  of  this 
question  be  given  the  most  serious  attention,  was  manifest  in  the  Commission. 
Consequently,  after  it  unanimously  adopted  the  proposals  of  the  technical  com- 
mittee, the  Commission  further  adopted,  also  unanimously,  to  express  this  be- 
lief, a  resolution  proposed  by  the  first  delegate  of  France  in  the  following  terms : 

The  Commission  is  of  opinion  that  the  restriction  of  military  charges, 
which  are  at  present  a  heavy  burden  on  the  world,  is  extremely  desirable  for 
the  increase  of  the  material  and  moral  welfare  of  mankind. 

The  Commission  accordingly  proposes  that  the  Conference,  too,  adopt  this 
resolution. 

IV.  The  other  Russian  proposition  had  reference  to  naval  armaments  and 
suggested  acceptance  of  the  principle  of  fixing  the  total  expenditures  for  a  term 
of  three  years,  leaving  to  each  Government  the  liberty  of  fixing  its  budget  at 
the  point  which  seems  to  it  desirable,  but  with  an  engagement  that  when  this 
budget  is  fixed  and  communicated,  it  cannot  be  increased  during  the  three-year 
period. 

This  proposition,  too,  met  with  difficulties  in  the  subcommission  charged 
with  its  examination.  Besides  such  as  would  eventually  present  themselves  in 
connection  with  the  manner  of  putting  such  a  project  in  execution,  a  serious 
obstacle  was  said  to  exist  in  countries  with  parliaments  where  the  legislative 
assemblies  have  the  right  of  voting  the  budgets. 

However  desirous  the  Commission  may  have  been  to  proceed  in  the  way 
pointed  out  by  the  Russian  proposition,  it  was  constrained  to  recognize  the 
fact  that  it  found  itself  unable  to  arrive  at  a  solution  of  this  problem,  which 
is  one  that  would  require  a  thorough  inquiry  on  the  part  of  the  various  Govern- 
ments if  called  upon  to  declare  their  positions  through  instructions ;  and  for  this 
the  necessary  time  would  be  lacking  during  this  Conference. 

The  Commission  has  therefore  agreed  to  relegate  this  question,  together  with 
thai  concerning  land  forces,  to  the  Governments,  in  order  that  the  latter,  if  they 
deem  it  advisable,  may  in  their  study  of  these  questions  take  into  consideration 
the  proposals  which  have  here  been  made. 

The  Commission  submits  this  idea  for  the  approval  of  the  Conference. 


SEVENTH  MEETING 

JULY  25,  1899 


His  Excellency  Mr.  Staal  presiding. 

The  meeting  opens  at  2 :  30  o'clock. 

The  President  states  that  the  minutes  of  the  last  meeting  must  remain 
open  at  the  request  of  his  Excellency  Sir  Julian  Pauncefote  who  has  announced 
that  he  would  doubtless  have  an  important  declaration  to  be  inserted  therein. 

The  minutes  therefore  have  not  been  printed  and  the  President  proposes, 
in  order  to  gain  time,  to  leave  the  care  of  approving  them  to  the  Bureau.^ 

He  adds: 

I  seize  this  opportunity  once  more  to  thank  the  secretariat  for  the  zeal  it 
shows  in  the  considerable  work  with  which  it  is  now  charged,  and  I  beg  Mr.  van 
Karnebeek  also  to  transmit  the  thanks  of  the  Assembly  to  the  National 
[64]  Printing  Office,  whose  director  and  force  have  a  special  claim  to  our  grati- 
tude. The  rapid  printing  of  the  report  of  Chevalier  Descamps  permitting 
us  to  meet  to-day,  has  well  shown  the  value  of  this  collaboration.     (Applause.) 

We  are  arrived,  gentlemen,  almost  at  the  end  of  our  labors.  I  have  first 
to  request  you  to  give  your  approval  to  the  text  of  the  articles  adopted  by  the 
Third  Commission  for  the  pacific  settlement  of  international  disputes  which 
Chevalier  Descamps  is  about  to  give  you  in  its  last  reading. 

The  following  articles,  read  by  Chevalier  Descamps,  are  successively  put  to 
vote  and  adopted  without  discussion: 

PART  I. — The  Maintenance  of  General  Peace 

Article  1 

With  a  view  to  obviating,  as  far  as  possible,  recourse  to  force  in  the  relations  between 
States,  the  signatory  Powers  agree  to  use  their  best  efforts  to  ensure  the  pacific  settlement 
of  international  differences. 

PART  II. — Good  Offices  and  Mediation 
Article  2 

In  case  of  serious  disagreement  or  dispute,  before  an  appeal  to  arms,  the  signatory 
Powers  agree  to  have  recourse,  as  far  as  circumstances  allow,  to  the  good  offices  or  mediation 
of  one  or  more  friendly  Powers. 

Article  3 

Independently  of  this  recourse,  the  signatory  Powers  deem  it  expedient  that  one  or 
more  Powers,  strangers  to  the  dispute,  should,  on  their  own  initiative,  and  as  far  as  circum- 
stances may  allow,  offer  their  good  offices  or  mediation  to  the  States  at  variance. 

*  See  note,  ante,  p.  82,  sixth  meeting. 

91 


92  PLENARY  CONFERENCE 

Powers  strangers  to  the  dispute  have  the  right  to  offer  good  offices  or  mediation  even 
during  the  course  of  hostihties. 

The  exercise  of  this  right  can  never  be  regarded  by  either  of  the  parties  in  dispute 
as  an  unfriendly  act. 

Article  4 

The  part  of  mediator  consists  in  reconciling  the  opposing  claims  and  appeasing  the 
feelings  of  resentment  which  may  have  arisen  between  the  States  at  variance. 

Article  S 

The  functions  of  the  mediator  are  at  an  end  when  once  it  is  declared,  either  by  one 
of  the  parties  to  the  dispute,  or  by  the  mediator  himself,  that  the  means  of  reconciliation 
proposed  by  him  are  not  accepted. 

Article  6 

Good  offices  and  mediation,  undertaken  either  at  the  request  of  the  parties  in  dispute, 
or  on  the  initiative  of  Powers  strangers  to  the  dispute,  have  exclusively  the  character  of 
advice  and  never  have  binding  force. 

Article  7 

The  acceptance  of  mediation  cannot,  unless  there  be  an  agreement  to  the  contrary,  have 
the  effect  of  interrupting,  delaying,  or  hindering  mobilization  or  other  measures  of  prepara- 
tion for  war. 

If  it  takes  place  after  the  commencement  of  hostilities,  the  military  operations  in 
progress  are  not  interrupted,  unless  there  be  an  agreement  to  the  contrary. 

Article  8 

The  signatory  Powers  are  agreed  in  recommending  the  application,  when  circumstances 
allow,  of  special  mediation  in  the  following  form : 

In  case  of  a  serious  difference  endangering  the  peace,  the  States  at  variance  choose 
respectively  a  Power,  to  which  they  entrust  the  mission  of  entering  into  direct  communication 
with  the  Power  chosen  on  the  other  side,  with  the  object  of  preventing  the  rupture  of 
pacific  relations. 

For  the  period  of  this  mandate,  the  term  of  which,  unless  otherwise  stipulated,  cannot 
exceed  thirty  days,  the  States  in  dispute  cease  from  all  direct  communication  on  the  subject 
of  the  dispute,  which  is  regarded  as  referred  exclusively  to  the  mediating  Powers,  which 
must  use  their  best  efforts  to  settle  it. 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are  charged  with  the 
joint  task  of  taking  advantage  of  any  opportunity  to  restore  peace. 


PART  III. — International  Commissions  of  Inquiry 
Article  9 

In  disputes  of  an  international  nature  involving  neither  honor  nor  essential  interests, 
and  arising  from  a  difference  of  opinion  on  points  of  fact,  the  signatory  Powers  deem  it 
expedient  that  the  parties,  who  have  not  been  able  to  come  to  an  agreement  by  means  of 
diplomacy,  should,  as  far  as  circumstances  allow,  institute  an  international  commission  of 
inquiry,  to  facilitate  a  solution  of  these  disputes  by  elucidating  the  facts  by  means  of  an 
impartial  and  conscientious  investigation. 


SEVENTH  MEETING,  JULY  25,  1899  93 

Article  10 

The  international  commissions  of  inquiry  are  constituted  by  special  agreement  between 
[65]   the  parties  in  dispute. 

The   inquiry   convention   defines   the   facts   to   be   examined   and   the   extent  of   the 
powers  of  the  commissioners. 
It  settles  the  procedure. 
At  the  inquiry  both  sides  must  be  heard. 

The  form  and  the  periods  to  be  observed,  if  not  stated  in  the  inquiry  convention,  are 
decided  by  the  commission  itself. 

Article  11 

International  commissions  of  inquiry  are  formed,  unless  otherwise  stipulated,  in  the 
manner  determined  by  Article  32  of  the  present  Convention. 

Article  12 

The  Powers  in  dispute  undertake  to  supply  the  international  commission  of  inquiry, 
as  fully  as  they  may  think  possible,  with  all  means  and  facilities  necessary  to  enable  it  to 
become  completely  acquainted  with  and  to  accurately  understand  the  facts  in  question. 

Article  13 

The  international  commission  of  inquiry  communicates  its  report  to  the  Powers  in 
dispute,  signed  by  all  the  members  of  the  commission. 

Article  14 

The  report  of  the  international  commission  of  inquiry  is  limited  to  a  finding  of  facts, 
and  has  in  no  way  the  character  of  an  award.  It  leaves  to  the  Powers  in  dispute  entire 
freedom  as  to  the  effect  to  be  given  to  this  finding. 


PART  IV. — International  Arbitration 

Chapter  I. — The  system  of  arbitration 

Article  15 

International  arbitration  has  for  its  object  the  settlement  of  disputes  between  States  by 
judges  of  their  own  choice,  and  on  the  basis  of  respect  for  law. 

Article  16 

In  questions  of  a  legal  nature,  and  especially  in  the  interpretation  or  application  of 
international  conventions,  arbitration  is  recognized  by  the  signatory  Powers  as  the  most 
effective,  and  at  the  same  time  the  most  equitable,  means  of  settling  disputes  which 
diplomacy  has  failed  to  settle. 

Article  17 

The  arbitration  convention  is  concluded  for  questions  already  existing  or  for  questions 
which  may  arise  eventually. 

It  may  embrace  any  dispute  or  only  disputes  of  a  certain  category. 

Article  18 

The  arbitration  convention  implies  an  engagement  to  submit  in  good  faith  to  the 
arbitral  award. 


94  PLENARY  CONFERENCE 

Article  19 

Independently  of  general  or  private  treaties  expressly  stipulating  recourse  to  arbi- 
tration as  obligatory  on  the  signatory  Powers,  these  Powers  reserve  to  themselves  the  right 
of  concluding,  either  before  the  ratification  of  the  present  act  or  later,  new  agreements, 
general  or  private,  with  a  view  to  extending  arbitration  to  all  cases  which  they  may 
consider  it  possible  to  submit  to  it. 

Chapter  II. — The  Permanent  Court  of  Arbitration 

Article  20 

With  the  object  of  facilitating  an  immediate  recourse  to  arbitration  for  international 
differences,  which  it  has  not  been  possible  to  settle  by  diplomacy,  the  signatory  Powers 
undertake  to  organize  a  Permanent  Court  of  Arbitration,  accessible  at  all  times  and  oper- 
ating, unless  otherwise  stipulated  by  the  parties,  in  accordance  with  the  rules  of  procedure 
inserted  in  the  present  Convention. 

Article  21 

The  Permanent  Court  shall  be  competent  for  all  arbitration  cases,  unless  the  parties 
agree  to  institute  a  special  tribunal. 

Article  22 

An  International  Bureau,  established  at  The  Hague,  serves  as  registry  for  the  Court. 

This  Bureau  is  the  channel  for  communications  relative  to  the  meetings  of  the  Court. 

It  has  the  custody  of  the  archives  and  conducts  all  the  administrative  business. 

The  signatory  Powers  undertake  to  communicate  to  the  International  Bureau  at  The 
Hague  a  duly  certified  copy  of  any  conditions  of  arbitration  arrived  at  between  them,  and 
of  any  award  concerning  them  delivered  by  a  special  tribunal. 

They  undertake  likewise  to  communicate  to  the  Bureau  the  laws,  regulations,  and 
documents  eventually  showing  the  execution  of  the  awards  given  by  the  Court. 

Article  23 

Within  the  three  months  following  its  ratification  of  the  present  act,  each  signatory 
[66]  Power  shall  select  four  persons  at  the  most,  of  known  competency  in  questions  of 
international  law,  of  the  highest  moral  reputation,  and  disposed  to  accept  the  duties 
of  arbitrators. 

The  persons  thus  selected  shall  be  inscribed,  as  members  of  the  Court,  in  a  list  which 
shall  be  notified  to  all  the  signatory  Powers  by  the  Bureau. 

Any  alteration  in  the  list  of  arbitrators  is  brought  by  the  Bureau  to  the  knowledge 
of  the  signatory  Powers. 

Two  or  more  Powers  may  agree  on  the  selection  in  common  of  one  or  more  members. 

The  same  person  can  be  selected  by  different  Powers. 

The  members  of  the  Court  are  appointed  for  a  term  of  six  years.  Their  appointments 
can  be  renewed. 

In  case  of  the  death  or  retirement  of  a  member  of  the  Court,  his  place  is  filled  in  the 
same  way  as  he  was  appointed. 

Article  24 

When  the  signatory  Powers  wish  to  have  recourse  to  the  Permanent  Court  for  the 
settlement  of  a  difference  that  has  arisen  between  them,  the  arbitrators  called  upon  to  form 
the  tribunal  competent  to  decide  this  difference  must  be  chosen  from  the  general  list  of 
members  of  the  Court. 


SEVENTH  MEETING,  JULY  25,  1899  95 

Failing  the  composition  of  the  arbitration  tribunal  by  direct  agreement  of  the  parties, 
the  following  course  is  pursued : 

Each  party  appoints  two  arbitrators,  and  these  together  choose  an  umpire. 

If  the  votes  are  equally  divided,  the  choice  of  the  umpire  is  entrusted  to  a  third 
Power,  selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects  a  different  Power, 
and  the  choice  of  the  umpire  is  made  in  concert  by  the  Powers  thus  selected. 

The  tribunal  being  thus  composed,  the  parties  notify  to  the  Bureau  their  determination 
to  have  recourse  to  the  Court  and  the  names  of  the  arbitrators. 

The  tribunal  of  arbitration  assembles  on  the  date  fixed  by  the  parties. 

The  members  of  the  Court,  in  the  performance  of  their  duties  and  out  of  their  own 
country,  enjoy  diplomatic  privileges  and  immunities. 

Article  25 
The  tribunal  of  arbitration  sits  ordinarily  at  The  Hague. 

Except  in  cases  of  necessity,  the  place  of  session  can  only  be  altered  by  the  tribunal 
with  the  assent  of  the  parties. 

Article  26 

The  International  Bureau  at  The  Hague  is  authorized  to  place  its  premises  and  staflF 
at  the  disposal  of  the  signatory  Powers  for  the  use  of  any  special  board  of  arbitration. 

The  jurisdiction  of  the  Permanent  Court  may,  within  the  conditions  laid  down  in  the 
regulations,  be  extended  to  disputes  between  non-signatory  Powers,  or  between  signatory 
Powers  and  non-signatory  Powers,  if  the  parties  are  agreed  to  have  recourse  to  this 
tribunal. 

Article  27 

The  sig^natory  Powers  consider  it  their  duty,  if  a  serious  dispute  threatens  to  break  out 
between  two  or  more  of  them,  to  remind  these  latter  that  the  Permanent  Court  is  open 
to  them. 

Consequently,  they  declare  that  the  fact  of  reminding  the  parties  at  variance  of  the 
provisions  of  the  present  Convention,  and  the  advice  given  to  them,  in  the  highest  interests 
of  peace,  to  have  recourse  to  the  Permanent  Court,  can  only  be  regarded  as  in  the  nature 
of  good  offices. 

Article  28 

A  Permanent  Administrative  Council,  composed  of  the  diplomatic  representatives  of 
the  signatory  Powers  accredited  to  The  Hague  and  of  the  Netherland  Minister  for  Foreign 
Affairs,  who  will  act  as  president,  shall  be  instituted  in  this  town  as  soon  as  possible  after 
the  ratification  of  the  present  act  by  at  least  nine  Powers. 

This  Council  will  be  charged  with  the  establishment  and  organization  of  the  Inter- 
national Bureau,  which  will  be  under  its  direction  and  control. 

It  will  notify  to  the  Powers  the  constitution  of  the  Court  and  will  provide  for  its 
installation. 

It  will  settle  its  rules  of  procedure  and  all  other  necessary  regulations. 

It  will  decide  all  questions  of  administration  which  may  arise  with  regard  to  the 
operations  of  the  Court. 

It  will  have  entire  control  over  the  appointment,  suspension  or  dismissal  of  the  officials 
and  employees  of  the  Bureau. 
[671    It  will  fix  the  payments  and  salaries,  and  control  the  general  expenditure. 

At  meetings  duly  summoned  the  presence  of  five  members   is   sufficient  to  render 
valid  the  discussions  of  the  Council.    The  decisions  are  taken  by  a  majority  of  votes. 

The  Council  communicates  to  the  signatory  Powers  without  delay  the  regulations 
adopted  by  it.  It  addresses  to  them  an  annual  report  on  the  labors  of  the  Court,  the 
working  of  the  administration,  and  the  expenditure. 


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Article  29 

The  expenses  of  the  Bureau  shall  be  borne  by  the  signatory  Powers  in  the  proportion 
fixed  for  the  International  Bureau  of  the  Universal  Postal  Union. 

Chapter  III. — Arbitration  Procedure 

Article  30 

With  a  view  to  encouraging  the  development  of  arbitration,  the  signatory  Powers  have 
agreed  on  the  following  rules,  which  shall  be  applicable  to  arbitration  procedure  unless  other 
rules  have  been  agreed  on  by  the  parties. 

Article  31 

The  Powers  which  have  recourse  to  arbitration  sign  a  special  act  (compromis)  in 
which  are  clearly  defined  the  subject  of  the  dispute  and  the  extent  of  the  arbitrators'  powers. 
This  act  implies  an  engagement  of  the  parties  to  submit  in  good  faith  to  the  arbitral  award. 

Article  32 

The  duties  of  arbitrator  may  be  conferred  on  one  arbitrator  alone  or  on  several 
arbitrators  selected  by  the  parties  as  they  please,  or  chosen  by  them  from  the  members  of 
the  Permanent  Court  of  Arbitration  established  by  the  present  act. 

Failing  the  composition  of  the  tribunal  by  direct  agreement  of  the  parties,  the  following 
course  is  pursued: 

Each  party  appoints  two  arbitrators,  and  these  together  choose  an  umpire. 

If  the  votes  are  equally  divided,  the  choice  of  the  umpire  is  entrusted  to  a  third 
Power,  selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects  a  different  Power, 
and  the  choice  of  the  umpire  is  made  in  concert  by  the  Powers  thus  selected. 

Article  33 

When  a  sovereign  or  the  chief  of  a  State  is  chosen  as  arbitrator,  the  arbitration  pro- 
cedure is  settled  by  him. 

Article  34 

The  umpire  is  ex  officio  president  of  the  tribunal. 

When  the  tribunal  does  not  include  an  umpire,  it  appoints  its  own  president. 

Article  35 

In  case  of  the  death,  retirement,  or  disability  from  any  cause  of  one  of  the  arbitrators, 
his  place  is  filled  in  the  same  way  as  he  was  appointed. 

Article  36 

The  tribunal's  place  of  session  is  selected  by  the  parties.  Failing  this  selection,  the 
tribunal  sits  at  The  Hague. 

The  place  thus  fixed  cannot,  except  in  case  of  necessity,  be  altered  by  the  tribunal 
without  the  assent  of  the  parties. 

Article  37 

The  parties  are  entitled  to  appoint  delegates  or  special  agents  to  attend  the  tribunal 
to  act  as  intermediaries  between  themselves  and  the  tribunal. 

They  are  further  authorized  to  commit  the  defense  of  their  rights  and  interests  before 
the  tribunal  to  counsel  or  advocates  appointed  by  them  for  this  purpose. 


SEVENTH  MEETING,  JULY  25,  1899  97 

Article  38 

The  tribunal  decides  on  the  choice  of  languages  to  be  used  by  itself,  and  to  be  authorized 
for  use  before  it. 

Article  39 

As  a  general  rule  arbitration  procedure  comprises  two  distinct  phases :  pleadings  and 
oral  discussions. 

The  pleadings  consist  in  the  communication  by  the  respective  agents  to  the  members 
of  the  tribunal  arid  the  opposite  party  of  all  printed  or  written  acts  and  of  all  documents 
containing  the  grounds  relied  on  in  the  case.  This  communication  shall  be  made  in  the 
form  and  within  the  time  fixed  by  the  tribunal  in  accordance  with  Article  49. 

The  discussions  consist  in  the  oral  development  before  the  tribunal  of  the  arguments 
of  the  parties. 

Article  40 

Every  document  produced  by  one  party  must  be  communicated  to  the  other  party. 

Article  41 

[68]    The  discussions  are  under  the  direction  of  the  president. 

They  are  only  public  if  it  be  so  decided  by  the  tribunal,  with  the  assent  of  the 
parties. 

They  are  recorded  in  the  minutes  drawn  up  by  the  secretaries  appointed  by  the 
president.    These  minutes  alone  have  an  authentic  character. 

Article  42 

After  the  close  of  the  pleadings,  the  tribunal  is  entitled  to  refuse  discussion  of  all  new 
papers  or  documents  which  one  of  the  parties  may  wish  to  submit  to  it  without  the  consent 
of  the  other  party. 

Article  43 

The  tribunal  is  free  to  take  into  consideration  new  papers  or  documents  to  which 
its  attention  may  be  drawn  by  the  agents  or  counsel  of  the  parties. 

In  this  case,  the  tribunal  has  the  right  to  require  the  production  of  these  papers  or 
documents,  but  is  obliged  to  make  them  known  to  the  opposite  party. 

Article  44 

The  tribunal  can,  besides,  require  from  the  agents  of  the  parties  the  production  of  all 
papers,  and  can  demand  all  necessary  explanations.  In  case  of  refusal,  the  tribunal  takes 
note  of  it. 

Article  45 

The  agents  and  counsel  of  the  parties  are  authorized  to  present  orally  to  the  tribunal 
all  the  arguments  they  may  consider  expedient  in  defense  of  their  case. 

Article  46 

They  are  entitled  to  raise  objections  and  points.  The  decisions  of  the  tribunal  on  these 
points  are  final,  and  cannot  form  the  subject  of  any  subsequent  discussion. 

Article  47 

The  members  of  the  tribunal  are  entitled  to  put  questions  to  the  agents  and  counsel 
of  the  parties,  and  to  ask  them  for  explanations  on  doubtful  points. 

Neither  the  questions  put  nor  the  remarks  made  by  members  of  the  tribunal  in  the 
course  of  the  discussions  can  be  regarded  as  an  expression  of  opinion  by  the  tribunal  in 
general,  or  by  its  members  in  particular. 


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Article  48 

The  tribunal  is  authorized  to  declare  its  competence  in  interpreting  the  compromis 
as  well  as  the  other  treaties  which  may  be  invoked  in  the  case,  and  in  applying  the  principles 
of  international  law. 

Article  49 

The  tribunal  is  entitled  to  issue  rules  of  procedure  for  the  conduct  of  the  case,  to 
decide  the  forms  and  time  in  which  each  party  must  conclude  its  arguments,  and  to 
arrange  all  the  formalities  required  for  dealing  with  the  evidence. 

Article  50 

When  the  agents  and  counsel  of  the  parties  have  submitted  all  the  explanations  and 
evidence  in  support  of  their  case,  the  president  pronounces  the  discussion  closed. 

Article  51 

The  deliberations  of  the  tribunal  take  place  in  private.  Every  decision  is  taken  by  a 
majority  of  members  of  the  tribunal. 

The  refusal  of  a  member  to  vote  must  be  recorded  in  the  minutes. 

Article  52 

The  award,  given  by  a  majority  of  votes,  must  state  the  reasons  on  which  it  is  based. 
It  is  drawn  up  in  writing  and  signed  by  each  member  of  the  tribunal. 

Those  members  who  are  in  the  minority  may  record  their  dissent  when  signing. 

Article  53 
The  award  is  read  out  at  a  public  sitting  of  the  tribunal,  the  agents  and  counsel  of  the 
parties  being  present  or  duly  summoned  to  attend. 

Article  54 

The  award,  fully  pronounced  and  notified  to  the  agents  of  the  parties  at  variance, 
settles  the  dispute  definitively  and  without  appeal. 

Article  55 

The  parties  can  reserve  in  the  compromis  the  right  to  demand  the  revision  of  the 
award. 

In  this  case,  and  unless  there  be  an  agreement  to  the  contrary,  the  demand  must  be 
addressed  to  the  tribunal  which  pronounced  the  award.  It  can  only  be  made  on  the  ground 
of  the  discovery  of  some  new  fact  which  is  of  a  nature  to  exercise  a  decisive  influence  upon 
the  award,  and  which,  at  the  time  the  discussion  was  closed,  was  unknown  to  the  tribunal 
and  to  the  party  demanding  the  revision. 

Proceedings  for  revision  can  only  be  instituted  by  a  decision  of  the  tribunal  expressly 
{691    recording  the  existence  of  the  new  fact,  recognizing  in  it  the  character  described  in 
the  preceding  paragraph,  and  declaring  the  demand  admissible  on  this  ground. 

The  compromis  fixes  the  period  within  which  the  demand  for  revision  must  be  made. 

Article  56 

The  award  is  binding  only  on  the  parties  who  concluded  the  compromis. 

When  there  is  a  question  as  to  the  interpretation  of  a  convention  to  which  Powers 
•other  than  those  in  dispute  are  parties,  the  latter  notify  to  the  former  the  compromis  they 
have  concluded.  Each  of  these  Powers  is  entitled  to  intervene  in  the  case.  If  one  or  more 
avail  themselves  of  this  right,  the  interpretation  contained  in  the  award  is  equally  binding 
on  them. 


SEVENTH  MEETING,  JULY  25,  1899  99 

Article  57 
Each  party  pays  its  own  expenses  and  an  equal  share  of  the  expenses  of  the  tribunal. 

The  Count  de  Macedo  states  that  he  has  requested  the  floor  simply  to  declare 
that  he  withdraws  the  reservations  which  he  formulated  at  the  meeting  of  June 
20,  last,  on  the  occasion  of  the  final  vote  taken  on  the  ten  articles  concerning  the 
application  of  the  principles  of  the  Geneva  Convention  to  maritime  wars;  but 
that,  since  he  has  the  honor  of  speaking  before  the  Conference  just  after  the 
unanimous  approval  of  the  fundamental  part  of  the  draft  convention  respecting 
mediation  and  arbitration,  he  will  take  the  liberty  of  saying  a  few  words  for 
the  purpose  of  expressing  on  this  last  subject  a  regret  that  is  entirely  personal 
and  a  sentiment  of  patriotic  satisfaction.  The  regret  arises  from  the  fact  that, 
by  a  combination  of  circumstances  easily  understood,  in  which,  certainly,  pre- 
dominates the  comparative  personal  inability  of  the  speaker  in  this  areopagus  of 
eminent  men,  the  Portuguese  delegation  has  been  able  to  take  only  a  very  small 
and  modest  part;  that  it  has  contributed  little,  save  its  vote  and  conciliatory 
attitude,  towards  the  accomplishment  of  this  truly  important  and  essential  part 
of  the  work  of  the  Conference.  The  satisfaction  has  its  origin  in  the  sincere  and 
patriotic  conviction  that  nevertheless  his  country  will  have  the  right  to  claim 
a  part,  at  least  as  important  and  influential  as  that  belonging  to  any  other  nation 
represented  in  this  high  assembly,  of  the  glory  of  this  great  work  of  humanity, 
of  progress  and  of  peace.  For  Portugal  will  have  contributed  to  it,  and  in  a 
greater  degree  than  any  other  country,  by  example  as  by  act,  as  he  is  about  to 
demonstrate. 

In  reality,  Portugal  and  Holland  are  up  to  the  present  the  only  countries 
who  have  concluded  and  ratified  a  convention,  submitting  to  arbitration  all  differ- 
ences between  them  with  the  single  reservation  of  the  questions  touching  the 
autonomy  or  the  independence  of  one  of  the  two  nations.  Count  de  Macedo 
thinks  that  he  should  still  add,  for  it  cannot  be  denied  that  such  facts  have  a 
great  suggestive  value,  that  Portugal  had  in  the  last  half  century  only  five  really 
important  international  differences,  which  she  has  been  able  to  settle  promptly 
and  easily  through  simple,  direct  negotiations.  In  all  these  five  cases,  his  country 
has  invoked  mediation  or  arbitration;  he  will  abstain,  through  motives  of  pro- 
priety easily  understood,  from  enumerating  them,  especially  since  that  would  be 
unnecessary  before  an  assembly  so  enlightened ;  but  he  says  that  in  two  of  these 
five  cases  in  which  an  arrangement  for  arbitration  was  made,  the  arbiter  ruled 
in  favor  of  Portugal ;  in  a  third  case  where  an  eventual  mediation  has  been  ac- 
cepted, such  mere  prefatory  agreement  led  in  a  short  time  to  settlement  through 
direct  and  friendly  negotiations.  In  the  other  two  cases,  those  in  which  settle- 
ment by  arbitration  or  even  by  mediation  was  not  accepted,  the  differences  were 
adjusted  in  a  way  entirely  adverse  to  the  Portuguese  claims.  These  facts,  well 
known,  are  by  their  special  circumstances  too  suggestive  for  the  Count  de  Macedo 
not  to  believe  he  has  the  right  to  consider  them  very  influential.     (Applause.) 

The  President  then  reads  the  following  declaration: 

The  delegation  of  the  United  States  of  America  on  signing  the  Con- 
vention for  the  pacific  settlement  of  international  disputes,  as  proposed  by 
the  International  Peace  Conference,  makes  the  following  declaration : 

Nothing  contained  in  this  Convention  shall  be  so  construed  as  to  require 
the  United  States  of  America  to  depart  from  its  traditional  policy  of  not 


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intruding  upon,  interfering  with,  or  entangling  itself  in  the  political  questions 
or  policy  of  international  administration  of  any  foreign  State;  nor  shall  any- 
thing in  the  said  Convention  be  construed  to  imply  a  relinquishment  by  the 
United  States  of  its  traditional  attitude  toward  purely  American  questions. 

The  President  places  on  record  this  declaration  of  the  delegation  of  the 
United  States  of  America. 

The  draft  is  adopted  in  whole. 
[70]  The  President  says  that  before  entering  upon  the  next  subject  in  the  order 
of  the  day,  he  asks  the  Conference  to  unite  with  him  in  addressing  their 
fullest  thanks  to  the  statesman  who  has  presided  over  the  work  of  the  Third 
Commission. 

We  all  (said  he)  have  applauded  his  earnestness  and  eloquence ;  we  all 
have  sincerely  admired  the  tact  and  impartiality  with  which  he  has  guided  the 
debates.  As  to  our  reporter,  I  shall  say  to  him  that  his  name  will  remain 
intimately  bound  up  with  the  draft  that  you  have  just  adopted.  His  report 
is  a  monument  of  knowledge  and  system  and  represents  invaluable  intellectual 
eflfort. 

Let  us  thank  also  the  committee  of  examination,  its  secretary,  Baron 
d'Estournelles,  and  all  its  members,  statesmen  and  jurists,  who  have  facilitated 
our  task  and  cleared  the  way  before  us.     (Great  applause.) 

His  Excellency  Turkhan  Pasha  makes  the  following  declaration : 

The  Turkish  delegation,  considering  that  the  work  of  this  Conference  has 
been  a  work  of  high  loyalty  and  humanity,  destined  solely  to  assure  general 
peace  by  safeguarding  the  interests  and  the  rights  of  each  one,  declares,  in  the 
name  of  its  Government,  that  it  adheres  to  the  project  just  adopted,  on  the  fol- 
lowing conditions : 

1.  It  is  formally  understood  that  recourse  to  good  offices  and  mediation, 
to  commissions  of  inquiry  and  arbitration  is  purely  facultative  and  could  not  in 
any  case  assume  an  obligatory  character  or  degenerate  into  intervention ; 

2.  The  Imperial  Government  itself  will  be  the  judge  of  the  cases  where 
its  interests  would  permit  it  to  admit  these  methods  without  its  abstention  or 
refusal  to  have  recourse  to  them  being  considered  by  the  signatory  States  as  an 
unfriendly  act. 

It  goes  without  saying  that  in  no  case  could  the  means  in  question  be 
applied  to  questions  concerning  interior  regulation. 

The  declaration  of  His  Excellency  Turkhan  Pasha  is  recorded. 

His  Excellency  Sir  Julian  Pauncefote  asks  to  turn  back  to  Article  53 
of  the  Regulations  adopted  for  the  laws  and  customs  of  war.  He  recalls  that, 
on  the  request  of  Mr.  Bille,  shore  ends  of  cables  were  added  to  the  land  tele- 
graphs mentioned  in  this  article.  The  British  Government  is  of  the  opinion  that 
if  protection  of  telegraphic  material  on  land  may  enter  into  the  object  of  the 
deliberations  of  the  Conference,  the  extension  of  the  provision  to  cables  that 
extend  under  the  sea  for  a  distance  often  considerable,  would  exceed  the  com- 
petence of  this  assembly  from  which  it  has  been  agreed  to  exclude  naval 
matters. 

Sir  Julian  Pauncefote  hopes  that,  in  a  spirit  of  conciliation,  Mr.  Bille 
will  withdraw,  with  the  approval  of  the  Conference,  the  amendment  that  he  had 
offered  to  Article  53. 


SEVENTH  MEETING,  JULY  25,  1899  {        101 

Mr.  Bille  replies : 

My  Government  will  learn  with  regret  that  the  first  delegate  of  Great  Britain 
is  opposed  to  the  amendment  respecting  shore  ends  of  cables,  adopted  by  the 
Conference  and  inserted  in  Article  53  of  the  draft  convention  relative  to  the  laws 
and  customs  of  war  on  land. 

At  the  same  time,  but  merely  to  avoid  having  this  opposition  and  the  reserva- 
tion following  it  become  at  the  last  hour  an  obstacle  to  the  unanimous  acceptance 
of  a  draft  convention  which  does  honor  to  the  Peace  Conference  and  marks  progw 
ress  in  the  law  of  nations,  I  am  authorized  to  withdraw  the  amendment  in  ques- 
tion and  to  declare  at  the  same  time  that  my  Government  does  not  remain  less 
convinced  of  the  justice  of  the  existing  reasons  for  giving  submarine  cables,  and 
with  still  greater  reason  the  shore  ends  of  cables,  the  same  protection  in  war  as 
is  assured  to  land  telegraphs. 

My  Government  takes  note  of  the  support  that  the  Conference,  by  its 
former  vote,  has  given  to  the  principle  involved ;  it  recognizes  that  the  exclusion 
of  questions  of  maritime  law  necessarily  prevented  the  question  of  submarine 
cables  from  being  treated  by  this  Conference  as  it  deserves ;  it  now  confines  itself 
to  repeating  its  hope  that  this  question  will  be  taken  into  serious  consideration 
by  the  Powers  without  delay. 

The  President  states  that  on  account  of  the  declarations  which  have  just 
been  made,  the  text  of  Article  53  must  be  modified.  He  consults  the  Conference 
to  ascertain  whether  it  approves  this  modification  as  reached  by  agreement  between 
Sir  Julian  Pauncefote  and  Mr.  Bille. 

Mr.  Bille  repeats  that  he  has  withdrawn  his  amendment,  in  the  desire  of 
leaving  Article  53  unanimously  agreed  to.  He  adds  that  if  anyone  should  feel 
obliged  to  take  it  up  again,  he  would  consider  it  his  duty  to  align  himself  with 
the  new  motion. 

The  President  asks  if  it  is  desired  to  vote  by  roll-call. 

Mr.  Beldiman  says  that  he  has  favored  the  amendment  presented  by  Mr, 
Bille  and  that  his  Government  was  entirely  favorable  to  it.  He  thinks, 
[71]  however,  that  this  is  not  the  time  to  renew  the  discussion.  Although  of 
the  same  opinion  as  Mr.  Bille,  that  there  is  an  essential  difference  be- 
tween submarine  cables  and  that  these  latter  alone  fall  under  the  law  of  maritime 
war,  he  will  willingly  give  up  the  proposed  amendment  if  this  renunciation  would 
bring  about  the  adhesion  of  Great  Britain  to  the  whole  of  the  Convention  on  the 
laws  and  customs  of  war. 

His  Excellency  Sir  Julian  Pauncefote  replies  that  he  is  not  authorized  to 
make  a  promise  of  this  kind.  He  says  that  the  amendment  of  Mr.  Bille  was 
the  only  objection  that  had  so  far  been  presented  to  him  by  his  Government 
on  the  adopted  regulations.  He  does  not  believe  that  other  difficulties  will  be 
raised ;  but  he  can  not  make  such  an  engagement  as  Mr.  Beldiman  asks. 

Mr.  Martens  says  that  the  agreement  arrived  at  between  Sir  Julian  Paunce- 
fote and  Mr.  Bille  gives  a  real  hope  of  resulting  in  the  unanimous  signature  of 
the  Convention. 

No  one  requesting  the  floor,  the  President  says  that  the  modification  of 
Article  53,  requested  by  the  first  delegate  of  Great  Britain  and  accepted  by  the 
first  delegate  of  Denmark,  is  adopted  without  vote. 

The  President  gives  the  floor  to  Mr.  Renault  who  presents  an  oral  report  on 
the  work  of  the  drafting  committee  of  the  Final  Act. 


102         '  PLENARY  CONFERENCE 

Mr.  Renault  reminds  the  Conference  that  by  its  direction  Messrs.  Asser, 
Chevalier  Descamps,  Seth  Low,  Martens,  Merey  von  Kapos-Mere,  his 
Excellency  Count  Nigra,  Renault,  and  Baron  von  Stengel  met  to  decide  con- 
jointly upon  the  text  of  the  Final  Act,  containing  the  result  of  the  labors  of  the 
Conference.  Upon  the  refusal  of  his  Excellency  Count  Nigra,  who  had  been 
elected  president  of  the  committee,  to  serve,  this  office  was  filled  by  Mr.  Asser. 

Mr.  Renault  has  been  charged  to  make  an  oral  report  on  the  resolutions 
of  the  committee.  He  hopes  that  the  Conference  will  receive  this  extemporaneous 
report  with  indulgence. 

The  first  question  which  came  up  was  as  to  what  designation  should  be  given 
to  the  Final  Act  which  is  before  the  Conference. 

Should  it  be  called  Final  Act,  Protocol,  or  Proces-verhal?  The  committee 
was  of  the  opinion  that  the  denomination  "  Final  Act  "  would  be  more  in  keeping 
with  the  importance  of  the  work  of  the  Conference,  and  that  title  was  decided 
upon. 

As  the  aim  of  the  Final  Act  was  to  state  the  results  of  the  deliberations  of  the 
Conference,  the  query  arose  as  to  whether  this  document  should  bear  the  signa- 
tures of  all  the  delegates  who  took  part  in  the  work,  or  only  the  names  of  the 
delegates  plenipotentiary.  It  was  believed  that  it  was  proper  to  mention  in  the 
preamble  the  names  of  all  the  delegates  who  took  part  in  the  work,  and  at  the 
same  time  to  conform  to  the  custom  that  a  diplomatic  act  should  be  signed  only 
by  plenipotentiaries,  and  the  following  text  was  adopted  in  this  respect : 

The  International  Peace  Conference,  convoked  in  the  best  interests  of  humanity  by 
His  Majesty  the  Emperor  of  All  the  Russias,  assembled,  on  the  invitation  of  the  Govern- 
ment of  Her  Majesty  the  Queen  of  the  Netherlands,  in  the  Royal  House  in  the  Wood  at 
The  Hague,  on  May  18,  1899. 

The  Powers  enumerated  in  the  following  list  took  part  in  the  Conference,  to  which 
they  appointed  the  delegates  named  below : 

Here  follows  the  enumeration  of  all  the  delegates  appointed,  whether  pleni- 
potentiary or  not. 

After  which  will  come  the  following  formula : 

In  a  series  of  meetings,  between  May  18  and  July  29,  1899,  in  which  the  constant  desire 
of  the  delegates  above  mentioned  has  been  to  realize,  in  the  fullest  manner  possible,  the 
generous  views  of  the  august  initiator  of  the  Conference  and  the  intentions  of  their  Govern- 
ments, the  Conference  has  agreed,  for  submission  for  signature  by  the  plenipotentiaries,  on 
the  text  of  the  Conventions  and  Declarations  enumerated  below  and  annexed  to  the  present 
Act. 

This  instrument  indicates,  therefore,  that  all  the  delegates  have  taken  part  in 
the  work  of  the  Conference,  but  that  only  the  plenipotentiaries  have  the  right  to 

sign  the  Final  Act. 
[72]  The  Final  Act  next  states  that  the  Conference  has  adopted  the  text  of 
three  Conventions  and  three  Declarations.  It  must  be  noted  here  that  the 
signing  of  the  Final  Act  is  not  equivalent  to  the  signing  of  the  Conventions  and 
Declarations.  The  Final  Act  has  no  other  purpose  than  to  state  that  the  Con- 
ference has  reached  such  and  such  decisions,  and  that  the  plenipotentiaries  may 
therefore  sign  it  without  in  any  way  whatever  binding  their  Governments  in  so 
far  as  the  clauses  of  the  Conventions  and  Declarations  are  concerned. 


SEVENTH  MEETING,  JULY  25,  1899  103 

These  latter,  on  the  contrary,  will  not  become  binding  until  they  have  been 
signed,  and  they  may  even  be  signed  by  other  plenipotentiaries  than  those  who  are 
here  assembled.  Moreover,  they  form  so  many  separate  acts,  each  one  of  which 
has  its  own  force.  Consequently,  one  State  may  sign  them  all,  while  another  State 
may  sign  only  some  of  them.  It  is  therefore  evident  that  the  Final  Act  and  the 
Conventions  and  Declarations  may  bear  different  signatures  and  a  different 
number  of  signatures. 

The  question  came  up  as  to  what  date  the  Conventions  and  Declarations 
should  bear.  The  ideal  solution  clearly  would  have  been  that  all  the  States 
represented  at  the  Conference  might  be  in  a  position  to  sign  all  the  acts  at  the 
same  time  and  forthwith.  As  it  is  unfortunately  probable  that  this  will  not  be 
the  case,  an  attempt  has  been  made  to  form  a  link  between  the  various  signatures. 
It  is  to  be  supposed  that  several  States  will  sign  the  Conventions  at  the  same  time 
that  they  sign  the  Final  Act.  The  Conventions  and  Declarations  will  therefore  be 
given  the  same  date  as  the  Final  Act,  and  these  Conventions  and  Declarations, 
hearing  this  uniform  date,  will  remain  open  for  signature  until  December  31,  1899. 

After  January  1,  1900,  conditions  will  change  and  the  States  which  have  not 
signed  must,  if  they  desire  so  to  do,  avail  themselves  of  the  adhesion  or  accession 
clause,  which  will  be  found  in  each  Convention  or  Declaration,  and  give  notice 
of  such  adhesion  or  accession  in  the  form  provided. 

It  is  therefore  understood  that  States,  even  though  represented  at  the  Con- 
ference, will  fall  under  the  common  law,  unless  they  sign  before  December  31 
of  this  year. 

The  Final  Act  contains  an  enumeration  of  the  Conventions  and  Declarations 
in  the  following  form : 

I.  Convention  for  the  pacific  settlement  of  international  disputes. 

II.  Convention  respecting  the  laws  and  customs  of  war  on  land. 

III.  Convention  for  the  adaptation  to  maritime  warfare  of  the  principles  of  the  Geneva 
Convention  of  August  22,  1864. 

IV.  Three  Declarations : 

1.  To  prohibit  the  discharge  of  projectiles  and  explosives  from  balloons,  or  by  other 
similar  new  methods. 

2.  To  prohibit  the  use  of  projectiles,  the  only  object  of  which  is  the  diffusion  of 
asphyxiating  or  deleterious  gases. 

3.  To  prohibit  the  use  of  bullets  which  expand  or  flatten  easily  in  the  human  body, 
such  as  bullets  with  a  hard  envelope  which  does  not  entirely  cover  the  core  or  is  pierced 
with  incisions. 

These  Conventions  and  Declarations  shall  form  so  many  separate  acts.  These  acts 
shall  be  dated  this  day,  and  may  be  signed  up  to  December  31,  1899,  by  the  plenipotentiaries 
of  the  Powers  represented  at  the  International  Peace  Conference  at  The  Hague. 

It  will  be  noted  that  the  title  of  the  third  of  these  Declarations  above  has  been 
completed  by  the  addition  of  the  clause  "  such  as  bullets  with  a  hard  envelope 
which  does  not  entirely  cover  the  core  or  is  pierced  with  incisions."  The  object 
of  restoring  the  entire  formula  in  the  text  was  to  satisfy  certain  doubts  which  had 
arisen  as  to  the  advisability  of  the  abbreviation  which  was  made  at  first.  This 
is  not  therefore  a  modification  of  the  subject  matter  which  changes  the  character 
of  the  provision. 

Mr.  Renault  points  out  further  that  it  was  not  thought  wise  to  mention  the 
votes  upon  the  Conventions  and  Declarations.     The  reason  for  this  is  that  the 


104  PLENARY  CONFERENCE 

Final  Act  states  only  that  they  were  adopted  and  in  no  way  implies  that  they  were 

approved.     It  appeared  inadvisable  therefore  to  mention  whether  the  Con- 

[73]  ventions  and  Declarations  received  a  unanimous  vote  or  not.     The  Powers 

have  at  their  disposal  a  very  simple  means  of  showing  their  approval  or 

disapproval — by  signing  or  not  signing. 

The  Final  Act  next  contains  a  resolution,  which  was  unanimously  adopted 
upon  the  proposal  of  the  first  delegate  of  France.  It  is  presented  in  the  following 
form : 

Guided  by  the  same  sentiments,  the  Conference  has  adopted  unanimously  the  f ollowing^ 
resolution : 

The  Conference  is  of  opinion  that  the  restriction  of  military  charges,  which  are  at 
present  a  heavy  burden  on  the  world,  is  extremely  desirable  for  the  increase  of  the  material 
and  moral  welfare  of  mankind. 

The  Final  Act  then  takes  up  the  vaeux.  Mr.  Renault  points  out,  in  passing, 
that  a  vcBU  does  not  bind  the  Governments,  but  that  it  is  nevertheless  important 
in  the  sense  that  it  implies  their  approval  of  the  idea  which  prompted  this  vceu. 
It  is  therefore  necessary  in  mentioning  the  voeux,  and  to  show  the  sincerity  of 
the  act,  to  specify  whether  they  received  a  unanimous  vote  or  what  majority  they 
obtained. 

The  P'inal  Act  presents  the  vceiix  in  this  form : 

It  has,  besides,  uttered  the  following  vceux: 

1.  The  Conference,  taking  into  consideration  the  preliminary  steps  taken  by  the  Swiss 
Federal  Government  for  the  revision  of  the  Geneva  Convention,  utters  the  vau  that  steps 
may  shortly  be  taken  for  the  assembly  of  a  special  Conference  having  for  its  object  the 
revision  of  that  Convention. 

This  vwu  was  voted  unanimously. 

2.  The  Conference  utters  the  voeu  that  the  question  of  the  rights  and  duties  of  neutrals 
may  be  inserted  in  the  program  of  a  Conference  in  the  near  future. 

3.  The  Conference  utters  the  voeu  that  the  questions  with  regard  to  rifles  and  naval 
guns,  as  considered  by  it,  may  be  studied  by  the  Governments  with  the  object  of  coming  to 
an  agreement  respecting  the  employment  of  new  types  and  calibres. 

4.  The  Conference  utters  the  vcru  that  the  Governments,  taking  into  consideration 
the  proposals  made  at  the  Conference,  may  examine  the  possibility  of  an  agreement  as  to 
the  limitation  of  armed  forces  by  land  and  sea,  and  of  war  budgets. 

5.  The  Conference  utters  the  vocu  that  the  proposal  which  contemplates  the  declaration 
of  the  inviolability  of  private  property  in  naval  warfare  may  be  referred  to  a  subsequent 
Conference  for  consideration. 

6.  The  Conference  utters  the  voeu  that  the  proposal  to  settle  the  question  of  the 
bombardment  of  ports,  towns,  and  villages  by  a  naval  force  may  be  referred  to  a  subsequent 
Conference  for  consideration. 

The  last  five  vceux  were  voted  unanimously,  saving  some  abstentions. 

Finally,  the  Final  Act  ends  with  the  following  formula : 

In  faith  of  which^  the  plenipotentiaries  have  signed  the  present  Act,  and  have  affixed 
their  seals  thereto. 

Done  at  The  Hague,  July  29,  1899,  in  a  single  original,  which  shall  be  deposited  in  the 
Ministry  of  Foreign  Affairs,  and  copies  of  which,  duly  certified,  shall  be  delivered  to  all  the 
Powers  represented  at  the  Conference. 

Mr.  Renault,  in  concluding,  reminds  the  Conference  of  the  fact  that,  at  the 
request  of  Baron  Bildt,  the  words  "  States  "  or  "  Governments  "  were  replaced 


SEVENTH  MEETING,  JULY  25,  1899  105 

in  this  last  clause,  as  well  as  in  the  second  paragraph  of  the  preamble  which 
[74]   follows  the  Declarations,  by  the  word  "  Powers." 

The  President  thanks  Mr.  Renault,  in  the  name  of  the  Conference, 
for  the  very  complete  and  clear  report  that  he  has  just  presented.  (Unanimous 
opplause.) 

His  Excellency  Sir  Julian  Pauncefote  observes  that  the  last  five  voeux  repro- 
duced in  the  Final  Act  are  represented  as  having  been  voted  unanimously  with  a 
few  abstentions.  The  first  delegate  of  Great  Britain  has  not  found  in  the  minutes 
of  the  meeting  any  mention  of  his  personal  abstention  in  the  vote  on  those  voeux 
which  are  numbered  2,  3,  5  and  6.  He,  therefore,  deems  it  expedient  to  renew 
to-day  this  declaration  of  abstention  which  he  desires  to  see  placed  in  the  current 
minutes. 

The  President  says  that  this  shall  be  done. 

Mr.  Odier  recalls  that  he  declared  in  the  subcommission  that  he  had  not  been 
authorized  to  accept  the  voeii  presented  by  his  Excellency  Mr.  Eyschen  relative 
to  the  reference  to  a  subsequent  Conference  of  the  question  of  the  rights  and 
duties  of  neutrals.  He  believes  he  should  renew  this  declaration  here  with  the 
request  that  it  be  inserted  in  the  minutes. 

The  President  has  the  declaration  of  Mr.  Odier  recorded. 

The  Final  Act  is  reread  in  extenso  by  Mr.  Raffalovich. 

Baron  Bildt  recalls  that,  at  his  special  request,  the  words  States  or  Govern- 
ments have  been,  in  pages  1,  8,  and  10  of  the  Final  Act,  replaced  by  the  word 
Powers. 

The  Final  Act  is  adopted  in  its  entirety  without  further  remarks. 

His  Excellency  Count  Nig^a  speaks  as  follows : 

Gentlemen :  The  work  of  the  Conference  being  nearly  at  an  end,  I  take  the 
liberty  of  drawing  your  attention  to  the  considerable  work  accomplished  by  the 
printing  office  that  has  printed  our  documents  and  debates. 

I  do  not  speak  now  of  the  beauty  of  the  paper  nor  of  the  elegance  of  the  type. 
That  is  a  merit  of  the  Dutch  Government  and  we  are  not  surprised  thereat.  It 
is  furthermore  an  old  tradition  of  the  country  of  beautiful  books  and  beautiful 
engravings.  So  that  does  not  astonish  us  either.  I  speak  here  of  the  work  of 
the  printers  and  their  chiefs. 

In  my  long  career  I  have  been  present  at  many  conferences  and  other  diplo- 
matic meetings.  Never  have  I  been  present  at  a  miracle  of  printing  work  such 
as  that  which  has  been  offered  to  us  here. 

The  mass  of  prints  which  have  been  distributed  among  us  is  truly  enormous. 
There  are  documents  which  it  has  been  necessary  to  print  five,  six,  ten  times  and 
more  and  which  have  necessitated  constant  work  by  day  and  night.  The  diligence 
and  rapidity  with  which  this  work  has  been  accomplished  deserves  the  greatest 
praise.  Not  only  do  they  prove  the  self-denial,  already  familiar  to  us,  of  our 
secretariat,  but  they  do  the  greatest  honor  to  the  directing  force  and  personnel  of 
the  printing  office. 

The  multiplicity  of  the  prints  of  the  same  document  testifies  to  the  conscien- 
tiousness that  we  have  brought  to  our  task,  but  at  the  same  time  it  testifies  to 
their  patience. 

It  can  be  said  that  the  chiefs  and  workmen  of  our  printing  office  have  been, 
in  some  measure,  our  collaborators.  That  is  the  best  praise  that  we  can  give 
them. 


106  PLENARY  CONFERENCE 

I  propose  to  the  Conference  that  it  recognize  this  and  unite  in  this  praise. 
(Applause.) 

Jonkheer  van  Karnebeek  thanks  Mr.  Staal  and  Count  Nigra  for  the  words 
of  praise  that  they  have  bestowed  on  the  personnel  of  the  Government  Printing 
Office  of  the  Netherlands,  and  assures  them  that  the  workmen  of  that  establish- 
ment will  greatly  appreciate  them. 

The  meeting  adjourns. 


[75]  Annex  to  the  Minutes  of  the  Seventh  Meeting,  July  25 

REPORT  TO  THE  CONFERENCE 

The  message  of  His  Majesty  the  Emperor  of  Russia  invites  nations  to  unite 
their  efforts  for  the  "  maintenance  of  general  peace."  He  recalls  the  fact  that 
"  the  preservation  of  peace  has  been  set  up  as  the  purpose  of  international  poli- 
tics." He  asserts  that  "  that  high  purpose  is  in  accord  with  the  most  vital  interests 
and  most  legitimate  desires  of  all  Powers." 

Mediation  and  arbitration  belong  especially  to  those  institutions  which  tend  to 
the  strengthening  and  establishment  of  peace. 

The  circular  of  his  Excellency  Count  Mouravieff,  Minister  of  Foreign 
Affairs  of  Russia,  dated  December  30,  1898,  and  that  of  his  Excellency  Mr.  de 
Beaufort,  Minister  of  Foreign  Affairs  of  the  Netherlands,  dated  April  6,  1899,. 
placed  these  subjects  upon  the  program  of  the  Conference.  His  Excellency  Mr. 
Staal  set  forth  their  importance  in  his  speech  upon  opening  the  work  of  this  high 
assembly.  The  committee,^  to  which  was  entrusted  the  duty  of  submitting  them 
to  a  preliminary  examination,  has  attempted  to  prepare  the  way  for  an  inter- 
national agreement  containing  in  some  measure,  in  the  words  of  the  hope  expressed 
in  the  imperial  message,  "  a  united  sanction  of  the  principles  of  equity  and  right 
upon  which  rest  the  security  of  States  and  the  well-being  of  nations." 

It  has  put  the  results  of  its  labors  into  the  draft  of  an  international  agreement 
which  was  presented  to  the  Third  Commission  before  being  proposed  to  the 
Conference. 

The  committee  thought  that  the  name  "  Convention  for  the  pacific  settlement 
of  international  disputes  "  might  be  given  to  the  international  agreement  worked 
out  by  it. 

'  At  the  session  of  May  26,  1899,  the  Third  Commission  designated  as  members  of  the 
committee  of  examination :  Messrs.  Asser,  Chevalier  Descamps,  Baron  d'Estournelles  de 
Constant,  Holls,  Lammasch,  Martens,  Odier,  and  Zorn.  Chevalier  Descamps  was  ap- 
pointed president  and  reporter  of  the  committee,  and  Baron  d'Estournelles  de  Constant, 
secretary.  Mr.  Bourgeois,  president,  and  their  Excellencies  Count  Nigra  and  Sir  Julian 
Pauncefote,  honorary  presidents  of  the  Third  Commission,  participated  in  the  work  of  the 
committee,  as  well  as  his  Excellency  Mr.  Staal,  the  president,  and  Jonkheer  van  Karnebeek, 
the  vice  president  of  the  Conference.  Mr.  Bourgeois  and  Chevalier  Descamps  fulfilled  the 
duties  of  president.  Mr.  Jarousse  de  Sillac,  Attache  of  Embassy,  acted  as  assistant 
secretary. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  107 

This  agreement  contains  four  parts : 

I.  The  maintenance  of  general  peace. 

II.  Good  offices  and  mediation. 

III.  International  commissions  of  inquiry. 

IV,  International  arbitration. 

This  last  part  contains  the  three  chapters  on  the  system  of  arbitration,  on  the 
Permanent  Court  of  Arbitration,  and  on  arbitration  procedure. 

The  Convention  contains,  finally,  several  general  provisions  concerning  ratifi- 
cations, adhesions,  and  denunciations. 

In  the  examination  of  the  numerous  questions  which  have  come  to  its  atten- 
tion, the  committee  followed  the  general  order  clearly  indicated  at  the  beginning 
of  oiir  labors  by  Mr.  Leon  Bourgeois,  president  of  the  Third  Commission. 

Good  offices  and  mediation  naturally  formed  the  first  chapter  for  our  delib- 
erations. The  committee  studied  them,  taking  as  the  starting-point  of  its  work 
the  remarkable  draft  communicated  to  the  Conference  by  the  Russian  delegation, 
bearing  this  title :  "  Outlines  for  the  preparation  of  a  draft  convention  to  be  con- 
cluded between  the  Powers  taking  part  in  the  Hague  Conference."  Several  new 
provisions  have  been  added  to  this  preliminary  draft,  and  the  arrangement  of  the 
articles  has  had  to  be  modified. 


CONCERNING  THE  PACIFIC  SETTLEMENT  OF 
INTERNATIONAL  DISPUTES 

Preamble 

The  preamble  of  the  Convention  for  the  pacific  settlement  of  international 
disputes  has  been  accepted  as  formulated  by  the  author  of  this  report 
[76]  at  the  request  of  the  General  Drafting  Committee,^  except  for  the  sub- 
stitution in  the  fifth  paragraph  of  the  expression  "  tribunal  of  arbitration 
accessible  to  all  "  instead  of  the  words  "  free  tribunal," 
Here  is  the  preamble : 

Animated  by  a  strong  desire  to  work  for  the  maintenance  of  general  peace ; 

Resolved  to  promote  by  their  best  efforts  the  friendly  settlement  of  international 
disputes ; 

Recognizing  the  solidarity  uniting  the  members  of  the  society  of  civilized  nations; 

Desirous  of  extending  the  empire  of  law,  and  of  strengthening  the  appreciation  of 
international  justice; 

Convinced  that  the  permanent  institution  of  a  tribunal  of  arbitration,  accessible  to 
all,  in  the  midst  of  the  independent  Powers,  will  contribute  effectively  to  this  result; 

Having  regard  to  the  advantages  attending  the  general  and  regular  organization  of  the 
procedure  of  arbitration ; 

Sharing  the  opinion  of  the  august  initiator  of  the  International  Peace  Conference  that 
it  is  expedient  to  record  in  an  international  agreement  the  principles  of  equity  and  right  on 
which  are  based  the  security  of  States  and  the  welfare  of  peoples ; 

*  The  General  Drafting  Committee  was  composed  of  Messrs.  Asser,  president,  Cheva^ 
lier  Descamps,  Martens,  Merey  von  Kapos-Mere,  his  Excellency  Count  Nigra,  Seth  Low, 
Baron  von  Stengel,  and  Raffalovich,  secretary.  Jonkheer  Rochussen  fulfilled  the  duties 
of  assistant  secretary. 


108  PLENARY  CONFERENCE 

Being  desirous  of  concluding  a  Convention  to  this  effect,  have  appointed  as  their 
plenipotentiaries,  etc. 

Part  I. — The  maintenance  of  general  peace 

Article  1 
With  a  view  to  obviating,  as  far  as  possible,  recourse  to  force  in  the  relations  between 
States,  the  signatory  Powers  agree  to  use  their  best  efforts  to  ensure  the  pacific  settlement 
of  international  differences. 

This  article  is  general  in  scope.  It  tends  to  ensure  peace.  The  Powers 
therein  affirm  their  common  desire  to  prevent,  as  far  as  possible,  recourse  to  force 
in  international  relations,  and  they  agree  to  employ  every  effort  to  ensure  the 
peaceful  settlement  of  international  differences.  A  spirit  of  reciprocal  good  feeling 
and  friendly  understanding  cannot  fail  to  inspire  the  Powers  in  the  accomplish- 
ment of  this  work.  Furthermore,  it  is  left  to  them  to  decide  how  much  coopera- 
tion they  consider  themselves  able  to  render  in  bringing  about  the  desired  result 
without  implying  from  such  cooperation  a  special  agreement  by  one  Power  with 
another. 

The  committee,  upon  a  remark  made  by  Count  de  Macedo,  decided  that 
reasons  existed  for  giving  the  greatest  scope  to  the  provisions  of  Article  1.  The 
substitution  of  the  words  "  international  differences  "  for  the  more  special  pro- 
vision "  conflicts  which  may  arise  between  the  signatory  Powers  "  is  in  accord 
with  that  intention. 

Part  II. — Good  offices  and  mediation 

Article  2 

In  case  of  serious  disagreement  or  dispute,  before  an  appeal  to  arms,  the  signatory 
Powers  agree  to  have  recourse,  as  far  as  circumstances  allow,  to  the  good  offices  or  mediation 
of  one  or  more  friendly  Powers. 

The  use  of  good  offices  and  mediation  finds  its  general  justification  in  the  ties 
which  bind  the  members  of  an  international  society  composed  of  civilized  States 
one  with  the  other,  in  the  extreme  nature  of  armed  warfare  as  a  means  of  solving 
international  difficulties,  in  the  general  interest  which  exists  in  the  maintenance 
of  peace.  The  far-reaching  differences  which  may  produce  modern  wars  in  the 
relations  among  all  States  make  still  more  necessary,  in  our  day,  the  use  of  good 
offices  and  mediation,  whether  it  be  to  prevent,  or  to  mitigate,  armed  conflicts. 

Good  offices  can  be  distinguished  in  certain  respects  from  mediation.  Prac- 
tically, these  methods  are  distinguished  less  by  their  nature  than  by  their  greater 
or  less  concern  with  the  sphere  of  friendly  relations.  Often,  too,  one  follows  the 
other,  and  the  third  Power  which  has  established  negotiations  between  disputing 
States  is  also  named  to  take  part  in  these  negotiations  and  sometimes  to  conduct 
them.     Diplomatic  documents  do  not  insist  upon  this  distinction.     The  present 

Convention  provides  for  friendly  intervention  in  its  twofold  form. 
[77]  From  the  very  fact  that  good  offices  and  mediation  assume  the  character 
of  tactful  intervention  and  are  within  the  sphere  of  friendly  conciliation, 
they  offer  the  double  advantage  of  leaving  the  independence  of  the  States  to  which 
they  are  addressed  absolutely  intact,  and  lending  themselves  not  only  to  the  settle- 
ment of  legal  disputes,  but  also  to  the  accommodation  of  conflicting  interests.     In 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  109 

these  two  v/ays  they  can  place  at  the  service  of  international  peace  the  most  varied 
resources  for  settlements. 

The  conclusion  must  not  be  drawn  from  that,  that  their  application  is 
endorsed  without  restriction.  The  natural  sphere  of  good  offices  and  mediation 
is  that  of  serious  differences  which  endanger  the  maintenance  of  peaceful  relations. 
Beyond  that,  their  use  might  constitute  unreasonable  interference,  not  without 
danger. 

Article  2  describes  in  the  following  manner  the  international  differences 
wherein  the  Powers  bind  themselves  to  resort  to  good  offices  and  mediation :  "  in 
case  of  serious  disagreement  or  dispute   .    .    .  before  an  appeal  to  arms." 

International  practice  notes  numerous  cases  where  the  tactful  intervention  of 
a  third  Power  has  produced  happy  results.  The  use  of  good  offices  or  mediation 
was  the  subject  of  special  agreements  in  Article  8  of  the  Treaty  of  Paris,  March 
30,  1856,  and  in  Articles  11  and  12  of  the  General  Act  of  the  Conference  of  Berlin, 
February  26,  1885.  Recourse  to  this  method  of  adjusting  international  difficulties 
formed  the  subject  of  a  vceit  of  general  scope  in  the  23rd  protocol  of  the  Congress 
of  Paris  in  1856.  International  conventions  form  a  firm  and  substantial  basis 
for  the  most  important  progress.  The  principle  of  prior  mediation,  written  into 
some  international  agreements  as  a  vocu  or  as  a  special  obligation,  may  be  all  the 
more  legitimately  followed  to-day  when  it  appears  as  an  application  by  the  Powers 
to  themselves  of  the  Convention  which  unites  them  as  to  the  methods  to  be  used 
to  ensure  the  peaceful  settlement  of  international  disputes. 

Should  the  agreement  in  the  contract  between  the  Powers  be  qualified  ?  Will 
not  reservations  be  of  such  a  nature  as  to  weaken  an  obligation  which  has  no 
sanction  behind  it?  In  the  committee  Mr.  Asser,  delegate  from  the  Netherlands, 
particularly  brought  out  this  point. 

But  it  has  been  observed — and  by  President  Leon  Bourgeois  among  the  first 
— that  we  were  dealing  with  a  provision  the  varying  applications  of  which  could 
with  difficulty  be  measured  in  advance.  It  may  be  wise  not  to  expose  the  execu- 
tion of  such  a  provision  to  resistance  of  such  a  character  as  to  shake  the  authority 
of  the  entire  Convention. 

Among  the  qualifications  which  it  was  deemed  were  practically  necessary, 
several  formulas  were  offered,  one  after  the  other.  Two  of  them  emphasized 
especially  the  exceptional  nature  of  the  cases  in  which  such  recourse  might  be 
declined.  "  Unless  the  exceptional  circumstances  render  this  method  manifestly 
impossible  of  application,"  said  one.  "  Unless  the  exceptional  circumstances  are 
not  in  conflict  therewith,"  was  another.  The  Russian  draft,  reproducing  the 
reservation  accepted  in  1856,  provided :  "  So  far  as  circumstances  admit."  The 
text  finally  adopted,  at  the  suggestion  of  his  Excellency  Sir  Julian  Pauncefote, 
reads :  "  So  far  as  circumstances  allow."  This  qualification  has  been  accepted  as 
being  in  accord  with  practical  necessities,  without,  however,  being  considered 
contrary  to  the  ideas  which  inspired  the  former  phraseology. 

Article  3 

Independently  of  this  recourse,  the  signatory  Powers  deem  it  expedient  that  one  or 
more  Powers,  strangers  to  the  dispute,  should,  on  their  own  initiative,  and  as  far  as  circum- 
stances may  allow,  offer  their  good  offices  or  mediation  to  the  States  at  variance. 

Powers  strangers  to  the  dispute  have  the  right  to  offer  good  offices  or  mediation,  even 
during  the  course  of  hostilities. 


110  PLENARY  CONFERENCE 

The  exercise  of  this  right  can  never  be  regarded  by  either  of  the  parties  in  dispute 
as  an  unfriendly  act. 

This  article  deals  with  a  leading  point :  the  offer  of  good  offices  and  mediation. 
This  offer  may,  in  certain  cases,  be  considered  as  the  fulfilment  of  a  service  due 
to  humanity,  or  of  a  duty  belonging,  under  certain  conditions,  to  the  society  of 
civilized  States.  It  is  to  be  noted  that  the  remarkable  provisions  of  Article  27 
are  inspired  by  this  last  consideration. 

As  to  the  power  to  offer  good  offices,  it  is  a  right  founded  upon  the  freedom 
of  States,  and,  in  many  cases,  blends  with  their  right  to  guard  their  own  interests 
and  their  property  as  members  of  the  peaceful  society  of  nations.  In  order  to 
find  a  check  upon  this  right  we  should  not  contest  its  existence,  but  consider  the 
corresponding  right  to  refuse  offers  which  may  be  made. 

This  power  should  be  safeguarded  at  any  event.  Mr.  Veljkovitch,  in 
[78]  order  the  better  to  establish  this  point,  proposed  to  place  the  offer  of 
good  offices  and  the  "  refusal  to  accept "  on  an  equal  footing  in  the  Con- 
vention, expressly  declaring  at  the  same  time  that  the  latter  may  never  be  con- 
sidered an  unfriendly  act.  While  recognizing  the  justice  of  this  view,  the  Com- 
mission considered  that  there  was  no  reason  to  emphasize  such  a  contingency  to 
this  extent. 

If  we  consider  the  difficulties  which  may  present  themselves  to  disputing 
States  when  endeavoring  to  agree  to  resort  to  some  mediator,  we  shall  appreciate 
the  importance  of  a  spontaneous  offer  of  friendly  intervention  as  a  means  of 
preventing  armed  conflicts. 

Unhappily,  this  offer  itself  is  often  so  surrounded  by  obstacles,  that  the  States 
most  sincerely  moved  by  a  desire  to  unite  in  the  preservation  of  peace  are  led  to 
take  refuge  in  complete  inaction.  Under  these  conditions,  it  is  very  important 
to  establish  beforehand,  in  the  name  of  all  and  without  idle  verbiage,  the  fact 
that  courageous  and  honorable  attempts  to  prevent  armed  struggles  between  States 
are  useful.  Good  intentions  will  be  less  restricted,  fears  will  be  in  some  measure 
allayed,  and  the  general  interests  of  peace  will  be  the  first  to  profit  by  a  general 
and  clearer  definition  of  this  matter. 

Here  again  a  practical  limitation  is  added  to  the  general  provision.  The 
reservation  "  as  far  as  circumstances  may  allow  "  indicates  clearly  that  it  is  not  a 
matter  of  giving  free  rein  to  methods  which  might  not  be  marked  with  prudence, 
opportuneness,  and  a  just  appreciation  of  events  and  a  sincere  desire  for  peace. 

At  the  end  of  the  first  paragraph  of  Article  3  the  Serbian  delegation  desired 
to  replace  the  words  "  Powers  at  variance  "  with  the  words  "  Powers  between 
which  a  serious  dispute  has  arisen  which  might  lead  to  a  breach  of  peaceful 
relations."  The  Commission  satisfied  this  suggestion  by  stating  that  Article  3 
has  in  view,  in  effect,  the  same  situation  as  Article  2,  so  far  as  the  character  of 
the  difference  giving  rise  to  good  offices  and  mediation  is  concerned. 

The  Russian  draft  dealt  principally  with  the  offer  of  good  offices  and  media- 
tion as  a  means  of  preventing  armed  conflicts.  An  additional  provision,  intro- 
duced by  his  Excellency  Count  Nigra,  insists  upon  the  right  of  friendly  inter- 
vention, even  during  the  course  of  hostilities.  At  the  same  time  it  attaches  to 
the  exercise  of  mediation  the  character  not  only  of  a  useful  method,  but  of  a 
measure  "  which  can  never  be  regarded  by  one  or  the  other  of  the  parties  in 
dispute  as  an  unfriendly  act."  The  first  delegate  from  Italy  pointed  out,  and 
not  without  reason,  the  importance  of  this  last  provision  as  a  guaranty  given  in 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  HI 

advance  to  the  Powers  who  may  be  moved  by  the  desire  to  exercise  their  power 
of  intervention  without  possible  apprehension. 

Article  4 

The  part  of  the  mediator  consists  in  reconciling  the  opposing  claims  and  appeasing  the 
feelings  of  resentment  which  may  have  arisen  between  the  States  at  variance. 

Article  4  intends  to  set  forth  in  a  general  way  the  character  of  the  mediator. 
It  summarizes  this  in  two  words  "  reconciliation  and  appeasement."  Reconcilia- 
tion of  the  opposing  claims,  appeasing  the  feelings  of  resentment  to  which  the 
conflict  may  have  given  rise. 

Article  S 

The  functions  of  the  mediator  are  at  an  end  when  once  it  is  declared,  either  by  one 
of  the  parties  to  the  dispute,  or  by  the  mediator  himself,  that  the  means  of  reconciliation 
proposed  by  him  are  not  accepted. 

The  mission  of  the  mediator  may  be  crowned  with  success :  in  that  case  there  is 
no  difficulty  to  be  feared.  Having  in  view  a  different  outcome,  it  is  not  unimportant 
to  fix  the  period  when  the  mediator  is  discharged  from  the  task  which  he  has 
assumed.  From  this  point  of  view  Article  5  declares  that  "  the  functions  of  the 
mediator  are  at  an  end  when  once  it  is  declared,  either  by  one  of  the  parties  to 
the  dispute,  or  by  the  mediator  himself,  that  the  means  of  reconciliation  proposed 
by  him  are  not  accepted." 

Article  6 

Good  offices  and  mediation,  undertaken  either  at  the  request  of  the  parties  in  dispute, 
or  on  the  initiative  of  Powers  strangers  to  the  dispute,  have  exclusively  the  character  of 
advice  and  never  have  binding  force. 

Article  6  insists  upon  the  essential  characteristic  of  good  offices  and  mediation. 
This  characteristic  is  that  of  simple  advice. 

Mediation  is  not  arbitration:  the  arbitrator  is  a  judge  and  renders  a  binding 
decision. 

Mediation  is  not  intervention  by  authority,  whether  in  the  internal  affairs  of 
a  State  or  in  its  foreign  relations. 
[79]  What  is  called  "  armed  mediation  "  is  not  mediation.      These  two  terms 
mediation  and  coercion  are  contradictory. 

Nations  cannot  deduce  from  the  provisions  of  the  present  Convention  con-- 
cerning  good  offices  and  mediation  any  right  whatever  to  exercise  supremacy,  to 
impose  their  individual  or  collective  will  by  obligation  or  constraint.  The  sphere 
of  mediation  is  and  should  remain  the  sphere  of  advice,  offered  or  requested  ia 
a  friendly  way,  freely  accepted  or  declined. 

Article  7 

The  acceptance  of  mediation  cannot,  unless  there  be  an  agreement  to  the  contrary,  have 
the  effect  of  interrupting,  delaying,  or  hindering  mobilization  or  other  measures  of  prepara- 
tion for  war. 

If  it  takes  place  after  the  commencement  of  hostilities,  the  military  operations  in 
progress  are  not  interrupted,  unless  there  be  an  agreement  to  the  contrary. 


112  PLENARY  CONFERENCE 

Article  7  deals  with  the  effects  of  mediation  after  it  has  been  accepted.  Due 
to  the  suggestion  of  his  Excellency  Count  Nigra,  the  article  is  inspired  by  the 
desire  to  facilitate  the  acceptance  of  mediation  by  making  the  immediate  conse- 
quences thereof  in  certain  respects  less  dangerous.  If  the  acceptance  of  mediation 
should  imply,  before  the  opening  of  hostilities,  suspension  of  preparations  for 
military  action,  and  after  the  opening  of  hostilities,  suspension  of  the  operations 
of  war,  certain  Powers  would  be  little  disposed  to  pursue  this  course.  The  great 
military  Powers  especially  would  not  consent  to  tie  up  their  actions  at  this  point. 
It  is  desirable  to  smooth  the  pathway  for  the  acceptance  of  mediation  which  shall 
be  free  from  too  burdensome  and  too  dangerous  consequences,  and,  with  this  in 
mind,  to  sacrifice  what  seems  desirable  as  a  temporary  result  to  that  which  should 
be  desired  as  a  final  result. 

The  Powers  in  controversy  are  also  free  to  attach  to  the  acceptance  of  media- 
tion, if  they  deem  it  expedient,  more  far-reaching  consequences  than  ordinarily 
follow.  The  words  "  unless  there  be  an  agreement  to  the  contrary  "  clearly  call 
attention  to  this  right.  Under  these  conditions  the  proposition  of  the  first  delegate 
of  Italy  appeared  to  be  of  such  a  nature  as  to  meet  all  exigencies  and  to  provide 
for  all  possibilities. 

Article  8 

The  signatory  Powers  are  agreed  in  recommending  the  application,  when  circumstances 
allow,  of  special  mediation  in  the  following  form : 

In  case  of  a  serious  difference  endangering  the  peace,  the  States  at  variance  choose 
respectively  a  Power,  to  which  they  entrust  the  mission  of  entering  into  direct  communi- 
cation with  the  Power  chosen  on  the  other  side,  with  the  object  of  preventing  the  rupture 
of  pacific  relations. 

For  the  period  of  this  mandate,  the  term  of  which,  unless  otherwise  stipulated,  cannot 
exceed  thirty  days,  the  States  in  dispute  cease  from  all  direct  communication  on  the  subject 
of  the  dispute,  which  is  regarded  as  referred  exclusively  to  the  mediating  Powers,  which 
must  use  their  best  efforts  to  settle  it. 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are  charged  with  the 
joint  task  of  taking  advantage  of  any  opportunity  to  restore  peace. 

Article  8  was  proposed  by  Mr.  Holls,  delegate  from  the  Government  of  the 
United  States  of  America.  It  concerns  mediation  of  a  particular  character  which 
may  be  very  productive  of  successful  results.  The  committee,  in  giving  it  a 
separate  place  among  the  proposed  provisions,  has  intended  to  preserve  the  form 
particularly  suited  to  it,  and  to  recommend  it  especially  in  those  cases  where  cir- 
cumstances will  permit  of  its  application.  It  deals  with  mediation  exercised  by 
common  agreement  by  several  Powers  chosen  respectively  by  the  disputing  States 
as  their  witnesses  or  champions,  with  a  view  to  a  peaceful  settlement. 

The  proposition  of  the  delegate  of  the  United  States  of  America  rests  upon 
this  practical  observation,  that  on  the  eve  of  a  meeting  which  is  believed  to  be 
fateful,  instead  of  leaving  debate  open  to  the  parties  in  controversy,  it  is  preferable 
for  the  moment  to  surrender  the  discussion  of  the  disputed  points  to  witnesses  or 
seconds  who  respectively  possess  the  confidence  of  each  party,  and  are  less  dis- 
posed to  give  way  to  passion. 

"  Mediation  by  common  agreement "  offers  the  great  advantage  of  doing 
away  with  the  necessity  of  an  agreement,  sometimes  very  difficult  to  reach,  as  to 
the  choice  of  a  common  mediator. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  113 

Besides  it  introduces  into  the  proceedings  between  nations  in  dispute  another 
preliminary  step.  The  author  of  this  proposition  observed  on  this  point  that  there 
may  be  circumstances  where  one  State  feels  obliged  to  say  to  its  adversary,  "  One 
step  farther  means  war."  It  would  be  much  better  for  it  to  say  under  these 
circumstances,  "  One  step  farther  and  I  shall  be  obliged  to  name  a  second."  The 
interests  of  peace  have  everything  to  gain  by  the  adoption  of  such  procedure. 

The  exercise  of  mediation  in  this  form  requires  the  fixing  of  a  period  during 
which  the  disputing  parties  cease  to  communicate  directly  concerning  the 
[80]  matter  in  dispute.  Article  8  provides  for  this  exigency  in  the  following 
manner :  "  For  the  period  of  this  mandate,  the  term  of  which,  unless 
otherwise  stipulated,  cannot  exceed  thirty  days,  the  parties  cease  from  all  direct 
exchange  of  communication  on  the  subject  of  the  dispute,  this  subject  being 
regarded  as  referred  to  the  Powers  exercising  mediation  jointly.  These  Powers 
must  use  their  best  efforts  to  settle  it." 

Article  8  contemplates,  in  short — and  this  point  is  important — the  practical 
breach  of  peaceful  relations,  and  it  provides  that  the  Powers  invested  with  the 
authority  of  mediator  "  are  charged  with  the  joint  task  of  taking  advantage  of 
any  opportunity  to  restore  peace." 

Here  is  a  collection  of  provisions  whose  underlying  principle  seems  happily 
suited  to  the  maintenance  and  prompt  reestablishment  of  peaceful  relations  be- 
tween States. 

It  was  expressly  understood,  after  a  question  by  Mr.  d'Ornellas  de  Vas- 
CONCELLOS,  that  Article  7,  concerning  the  effects  of  mediation,  is  applicable  to 
special  mediation  as  provided  for  in  Article  8. 

It  was  also  agreed,  after  remarks  by  the  author  of  this  report,  that  certain 
States  may  find  themselves,  in  disputes  of  certain  kinds,  in  a  peculiar  position  on 
the  question  of  the  selection  of  mediators  and  arbitrators.  For  instance,  Belgium 
would  be  in  this  position  as  regards  Powers  guaranteeing  her  independence,  when 
disputes  concerning  her  independence,  territorial  integrity,  neutrality,  as  well  as 
the  other  provisions  of  the  treaty  of  April  15,  1839,  arose. 

Mr.  MiYATOviTCH  requested  that  note  be  made  of  the  following  declaration : 

In  the  name  of  the  Royal  Government  of  Serbia,  we  have  the  honor  lo 
declare  that  our  adoption  of  the  principle  of  good  offices  and  mediation  does 
not  imply  a  recognition  of  the  right  of  third  States  to  use  these  means  except 
with  the  extreme  caution  which  proceedings  of  this  delicate  nature  require. 

We  do  not  accept  good  offices  and  mediation  except  on  condition  that 
their  character  as  purely  friendly  advice  is  fully  and  completely  maintained, 
and  we  never  could  accept  them  in  such  forms  and  under  such  circumstances 
as  would  endow  them  with  the  character  of  intervention. 


Part  III. — International  commissions  of  inquiry 

Article  9 

In  disputes  of  an  international  nature  involving  neither  honor  nor  essential  interests, 
and  arising  from  a  difference  of  opinion  on  points  of  fact,  the  signatory  Powers  deem  it 
expedient  that  the  parties,  who  have  not  been  able  to  come  to  an  agreement  by  means  of 
diplomacy,  should,  as  far  as  circumstances  allov/,  institute  an  international  commission  of 
inquiry,  to  facilitate  a  solution  of  these  disputes  by  elucidating  the  facts  by  means  of  an 
impartial  and  conscientious  investigation. 


114  PLENARY  CONFERENCE 

The  question  of  the  formation  of  international  commissions  of  inquiry  has 
been  considered  by  the  committee  to  be  of  great  importance  to  the  object  sought 
by  this  Conference.  The  advantages  of  the  formation  of  similar  commissions 
have  been  particularly  set  forth  by  Mr.  Martens. 

The  eminent  delegate  from  Russia  called  our  attention  to  the  fact  that 
international  commissions  of  inquiry  are  not  an  innovation.  They  have  already 
proved  the  value  of  their  services  when  a  conflict  breaks  out  between  two  States, 
each  acting  in  good  faith;  for  example,  if  a  question  concerning  frontiers  arises 
between  them,  opinion  becomes  inflamed  in  proportion  as  the  incident  is  unex- 
pected and  public  opinion  lacks  information  with  regard  to  it,  because  opinion 
is  ignorant  of  the  origin  and  real  causes  of  the  conflict.  Opinion  is  at  the  mercy 
of  momentary  impressions  and  there  are  many  opportunities  under  these  circum- 
stances to  irritate  the  spirits  and  embitter  the  disagreement.  That  is  why  we 
desired  to  provide  for  the  possibility  of  a  commission  having  for  its  purpose,  first 
and  above  all,  the  search  for,  and  the  publishing  of,  the  truth  as  to  the  causes  of 
the  incident  and  as  to  the  materiality  of  the  facts.  That  is  the  principal  business 
of  the  commission :  it  is  the  principal  role  of  the  commission :  it  is  named  to  make 
a  report,  and  not  to  make  decisions  which  might  bind  the  parties. 

But  while  it  is  working  to  make  its  report,  time  is  gained,  and  that  is  the 
second  object  we  have  in  view.  Spirits  grow  calmer,  and  the  conflict  is  no  longer 
acute. 

Now  this  double  and  important  practical  result  cannot  be  obtained  except 
on  one  condition,  and  that  is  that  the  interested  Governments  shall  both  agree 
to  take  upon  themselves  the  mutual  obligation  to  name  these  commissions,  with 
the  reservation,  of  course,  that  no  attack  shall  be  made  on  vital  questions,  nor  on 
the  honor  of  the  States  in  question. 

The  obligatory  nature  of  the  institution  of  commissions  of  inquiry  has  been 
the  subject  of  some  apprehension,  of  which  Mr.  Lammasch,  delegate 
[81]  from  Austria-Hungary,  acted  as  spokesman  before  the  committee.  He 
proposed,  therefore,  to  characterize  this  institution  as  useful  and  even 
to  recommend  it,  but  to  leave  recourse  thereto  optional.  At  first  this  point  of 
view  did  not  prevail  at  all.  The  committee  decided  upon  the  principle  of  obliga- 
tion, accompanied  by  this  qualification :  "  so  far  as  circumstances  allow." 

As  a  result  of  this.  Article  9,  as  originally  adopted  by  the  committee,  included 
two  classes  of  reservations :  one  concerning  the  case  where  the  honor  or  indeed  the 
vital  interests  of  the  interested  Powers  might  be  involved,  the  other  leaving  to 
these  same  Poweis  the  power  of  deciding  whether  the  circumstances  permitted 
the  formation  of  international  commissions  of  inquiry. 

Here  is  the  text  of  this  article : 

In  disputes  of  an  international  nature  arising  from  a  difference  of 
opinion  regarding  facts  which  may  form  the  object  of  local  determination, 
and  besides  involving  neither  the  honor  nor  vital  interests  of  the  interested 
Powers,  these  Powers,  in  case  they  cannot  come  to  an  agreement  by  the 
ordinary  means  of  diplomacy,  agree  to  have  recourse,  so  far  as  circumstances 
allow,  to  the  institution  of  international  commissions  of  inquiry,  in  order  to 
elucidate  at  once,  by  means  of  an  impartial  and  conscientious  investigation, 
all  the  facts. 

The  institution  of  international  commissions  of  inquiry  was  vigorously 
opposed  in  the  commission  by  the  delegation  from  Roumania.     It  was  repre- 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  115 

sented  by  Mr.  Beldiman  to  be  an  innovation  contrary  to  the  sovereignty  of 
States  and  presenting  many  dangers,  especially  in  view  of  the  obligatory  char- 
acter— in  tendency  at  least — which  might  be  attached  to  it. 

The  delegation  from  Serbia,  without  appearing  hostile  to  the  institution  itself, 
called  attention,  in  its  turn,  to  all  the  inconveniences  which  the  commissions  might 
bring  about,  being  in  some  respects  a  foreign  organization  acting  upon  national 
soil ;  and  as  a  source  of  inequality  of  treatment  between  the  large  and  small 
States. 

The  delegation  from  Greece,  in  its  turn,  drew  up  reservations,  expressing  the 
hope  that  an  understanding  agreeable  to  all  might  be  reached. 

The  delegation  from  Bulgaria,  without  admitting  that  international  com- 
missions of  inquiry  were  an  innovation,  expressed  the  opinion  that  these  com- 
missions should  be  of  a  more  voluntary  character. 

Mr.  RoLiN,  delegate  from  Siam,  made  a  declaration  in  the  name  of  his 
Government  regarding  the  extent  of  the  agreements  which  the  latter  intends  to 
assume  concerning  international  commissions  of  inquiry,  and  concluding  with 
these  words : 

We  believe  that  arbitration  should  normally  follow  inquiry,  in  default  of 
an  immediate  agreement. 

It  is  with  this  conviction  that  we  have  just  declared  that  the  Siamese 
Government  will  doubtless  be  led  to  consider  the  agreement  having  in  view 
a  possible  arbitration  or,  in  other  words,  the  prior  conclusion  of  a  compromis, 
as  the  principal  condition  on  which  it  could  consent  to  the  entry  of  an  inter- 
national commission  of  inquiry  into  its  territory  to  inquire  into  disputed  facts. 

In  the  course  of  a  long  discussion  in  which  Messrs.  Beldiman  and  Veljko- 
viTCH  took  part  on  one  side,  and  Mr.  Martens,  Chevalier  Descamps,  his  Excel- 
lency Mr.  Eyschen,  Messrs.  Zorn,  Asser,  and  Stancioff  took  the  other  side,  the 
omission  of  Articles  9  to  13  was  demanded  by  the  former. 

His  Excellency  Mr.  Eyschen  proposed,  on  his  side,  to  add  to  the  guaranties 
contained  in  these  articles  new  guaranties  analogous  to  those  which  exist  for 
arbitral  procedure. 

These  various  propositions  were  sent  to  the  committee  for  exanUnation.  The 
latter  adopted  a  new  form  for  Article  9,  as  follows : 

In  disputes  of  an  international  nature  arising  from  a  difference  of 
opinion  regarding  facts,  the  signatory  Powers  deem  it  expedient,  to  facilitate 
the  solution  of  these  disputes,  that  the  parties  who  have  not  been  able  to 
come  to  an  agreement  by  means  of  .diplomacy,  should  institute  international 
commissions  of  inquiry  in  order  to  elucidate  all  the  facts  by  means  of  an 
impartial  and  conscientious  investigation. 

The  committee  thought  that  the  voluntary  character  given  to  these  com- 
missions by  this  article  rendered  needless  the  reservations  contained  in  the 
preceding  text. 

It  believed,  too,  that  these  words,  "  which  may  form  the  object  of  local 
determination,"  applied  to  the  facts  upon  which  the  commissions  of  inquiry  are 
called  to  act,  were  neither  absolutely  exact  nor  always  applicable.  At  the  request 
of  Mr.  Asser,  it  proposed  to  omit  these,  as  well  as  the  words  "  at  once  "  near  the 
end  of  the  article. 


116  PLENARY  CONFERENCE 

At  a  session  of  the  commission  held  at  the  close  of  the  meeting  of  the 
committee,  the  delegations  of  Serbia  and  Greece  declared  themselves  ready  to 

adhere  to  the  provisions  proposed  by  the  committee. 
[82]   The   delegation   from   Roumania   proposed   on   its   part  a   new   draft   of 

Article  9  in  the  following  terms : 

In  disputes  of  an  international  nature  involving  neither  honor  nor 
essential  interests,  and  arising  from  a  difference  of  opinion  on  points  of  fact, 
the  signatory  Powers  deem  it  expedient  that  the  parties,  who  have  not  been 
able  to  come  to  an  agreement  by  means  of  diplomacy,  should,  as  far  as 
circumstances  allow,  institute  an  international  commission  of  inquiry,  to 
facilitate  a  solution  of  these  disputes  by  elucidating  the  facts  by  means  of 
an  impartial  and  conscientious  investigation. 

This  article  restores  to  the  new  text  the  two  modifications  inserted  in  the 
original  text.  It  substitutes  the  words  "  essential  interests  "  for  the  words  "  vital 
interests." 

The  commission  finally  agreed  to  this  as  a  form  reached  by  agreement  and 
giving  general  satisfaction. 

As  for  the  proposition  of  his  Excellency  Mr.  Eyschen,  as  developed  and 
made  more  definite,  it  was  adopted  and  forms  Article  10  of  the  Convention.  We 
reproduce  it  under  this  latter  article. 

Article  10 

The  international  commissions  of  inquiry  are  constituted  by  special  agreement  between 
the  parties  in  dispute. 

The  inquiry  convention  defines  the  facts  to  be  examined  and  the  extent  of  the  powers 
of  the  commissioners. 

It  settles  the  procedure. 

At  the  inquiry  both  sides  must  be  heard. 

The  form  and  the  periods  to  be  observed,  if  not  stated  in  the  inquiry  convention,  are 
decided  by  the  commission  itself. 

This  additional  article,  introduced  by  his  Excellency  Mr.  Eyschen,  was 
inspired  by  the  desire  to  protect  the  operation  of  international  commissions  of 
inquiry.     It  was  first  proposed  to  the  commission  in  the  following  language : 

Where  there  are  not  special  provisions,  the  procedure  for  inquiry  shall 
be  determined  by  the  principles  contained  in  the  rules  in  Articles  30  et  seq. 
relating  to  arbitration  procedure,  so  far  as  these  principles  are  applicable  to 
the  institution  of  international  commissions  of  inquiry. 

At  the  session  of  the  committee  to  which  the  examination  of  this  article  was 
referred,  his  Excellency  Mr.  Eyschen  summarized  as  follows  the  guaranties 
which  he  thought  it  important  to  establish: 

1.  The  agreement  instituting  the  inquiry  shall  state  exactly  the  facts 
to  be  examined  (enumeration  of  facts)  ; 

2.  Procedure  shall  be  after  hearing  both  parties  (the  adverse  party 
should  be  advised  of  all  opposing  statements)  ; 

3.  The  commission  shall  determine  the  form  and  the  periods  to  be 
observed. 

His  Excellency  Count  Nigra  insisted  that  the  necessary  special  agreement 
should  be  mentioned,  like  the  compromis  in  arbitration. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  117 

The  final  text  was  consequently  redrawn  as  follows : 

The  international  commissions  of  inquiry  are  constituted  by  special 
agreement  between  the  parties  in  dispute. 

The  inquiry  convention  defines  the  facts  to  be  examined  and  the  extent 
of  the  powers  of  the  commissioners. 

It  settles  the  procedure. 

At  the  inquiry  both  sides  must  be  heard. 

The  form  and  the  periods  to  be  observed,  if  not  stated  in  the  inquiry 
convention,  are  decided  by  the  commission  itself. 

This  provision  was  unanimously  adopted  by  the  committee. 

Article  11 

International  commissions  of  inquiry  are  formed,  unless  otherwise  stipulated,  in  the 
manner  determined  by  Article  32  of  the  present  Convention. 

Article  15  of  the  Russian  project  provided  a  mode  of  nomination  of  the 
members  of  the  commission  of  inquiry  similar  to  that  provided  by  the  arbitral  code 
for  the  nomination  of  the  members  of  the  arbitral  tribunals. 

The  committee  thought  it  was  advantageous  simply  to  refer  here  to  Article 
32  of  the  present  Convention,  recalling  the  fact  that  this  article  is  applicable  only 
in  case  the  parties  have  not  adopted  by  common  agreement  another  method  of 
constituting  the  commission. 

Mr.  HoLLS,  delegate  of  the  United  States  of  America,  set  forth,  in  this  con- 
nection, the  inconveniences  which  might  arise  in  forming  the  commission 
[83]  of  members  belonging  to  the  interested  States,  giving  only  the  deciding 
voice  to  a  neutral  president.  The  presence  of  three  neutral  commissioners 
would,  he  believed,  give  greater  authority  to  the  results  of  the  commission's  work. 

Article  12 

The  Powers  in  dispute  undertake  to  supply  the  international  commission  of  inquiry, 
as  fully  as  they  may  think  possible,  with  all  means  and  facilities  necessary  to  enable  it  to 
become  completely  acquainted  with  and  to  accurately  understand  the  facts  in  question. 

Certain  apprehensions  were  expressed  in  the  committee  with  regard  to  Article 
16  of  the  Russian  draft,  corresponding  to  Article  12  of  the  committee's  draft. 
The  obligation  provided  by  this  article  certainly  cannot  include  the  obligation  of 
a  Power  to  furnish  information  which  might  endanger  its  own  security.  In  order 
to  prevent  too  rigid  an  interpretation,  the  committee  modified  the  general  agree- 
ment contained  in  Article  16  by  this  qualification :  "  as  fully  as  they  may  think 
possible." 

The  phraseology  of  this  qualification  is  borrowed  from  Article  31  of  the 
General  Act  of  the  Brussels  Conference,  July  2,  1890. 

Article  13 

The  international  commission  of  inquiry  communicates  its  report  to  the  Powers  in 
dispute,  signed  by  all  the  members  of  the  commission. 

This  article  corresponds  to  Article  17  of  the  Russian  draft.  It  indicates 
clearly  the  nature  of  the  work  within  the  jurisdiction  of  the  commission.     The 


118  PLENARY  CONFERENCE 

latter  is  limited  to  the  statement  of  the  positive  results  of  its  inquiry  into  the 
facts,  embodied  in  a  report  signed  by  all  of  its  members. 

Article  14 
The  report  of  the  international  commission  of  inquiry  is  Hmited  to  a  finding  of  facts, 
and  has  in  no  way  the  character  of  an  award.    It  leaves  to  the  Powers  in  dispute  entire 
freedom  as  to  the  effect  to  be  given  to  this  finding. 

This  article  was  adopted  at  first  by  the  committee  as  a  reproduction  of 
Article  18  of  the  Russian  draft,  except  for  a  twofold  modification. 

The  possible  recourse  to  mediation  was  noted  along  with  the  ultimate  recourse 
to  arbitration. 

The  following  words,  placed  at  the  end  of  the  article,  "  whether  to  resort 
finally  to  means  accepted  in  intercourse  between  nations,"  were  omitted  at  the 
suggestion  of  Baron  d'Estournelles  de  Constant.  The  committee  thought  that 
these  last  words  contained  a  special  and  explicit  reservation  of  the  right  to  resort 
to  war,  a  reservation  which  it  seems  useless  to  make  in  the  act  of  a  Peace 
Conference.  It  appears  from  the  explanation  given  by  Mr.  Martens  that  the 
Russian  delegation  had  in  mind  only  certain  methods  compatible  with  a  state  of 
peace  and,  being  of  this  character,  authorized  by  the  law  of  nations.  The  com- 
mittee, however,  persisted  in  preferring  the  draft  which  it  had  decided  upon. 

The  articles  relating  to  commissions  of  inquiry  having  been  referred  back 
for  a  reexamination  by  this  committee,  following  the  discussion  in  the  commission, 
Mr.  Stancioff  proposed  to  redraft  the  second  part  of  the  final  article  of  this 
title  as  follows : 

The  report  of  the  international  commission  of  inquiry  leaves  to  the 
Governments  in  controversy  entire  freedom,  either  to  conclude  a  friendly 
settlement  based  upon  this  report,  or  to  consider  the  report  as  never  having 
been  made. 

The  committee  thought  it  unnecessary  to  state  thus  strongly  a  right  which 
was  not  contested.     It  agreed  to  the  following  proposition  of  Mr.  Odier: 

The  report  of  the  international  commission  of  inquiry  is  limited  to  a 
finding  of  facts,  and  has  in  no  way  the  character  of  an  award.  It  leaves 
to  the  Powers  in  dispute  entire  freedom  as  to  the  effect  to  be  given  to  this 
finding. 

Part  IV. — International  arbitration 

Humanity,  in  its  constant  evolution,  daily  tends  in  increasing  measure  to 
place  respect  for  the  law  as  the  foundation  of  its  existence.  The  society  of  civi- 
lized nations  recognizes  the  existence  of  legal  principles  and  rules  set  to  a  common 
standard — international  law.  Under  the  requirements  of  this  law  each  State 
retains  its  autonomy,  in  accordance  with  its  primary  and  unchangeable  inclination 
to  live  its  own  life,  according  to  its  own  idea,  on  its  own  territory,  by  the  activity 
of  its  people,  by  means  of  its  own  resources,  with  a  view  to  increasing  its  moral 
and  material  well-being  and  assuring  its  legitimate  growth  in  all  things.  But 
at  the  same  time,  it  recognizes  that  it  is  bound  to  the  other  States  in  the  inter- 
national community. 
[84]  The  farther  law  progresses,  and  the  more  it  enters  into  the  society  of 
nations,  the  more  clearly  arbitration  appears  woven  into  the  structure  of 
that  society. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  119 

As  a  principle  for  the  pacific  and  judicial  solution  of  international  differences 
it  is  presented  to  us  as  an  instrument  suited  to  ensure  the  rights  of  each,  while 
safeguarding  the  dignity  of  all. 

A  voluntary  system  of  jurisprudence  in  origin  as  well  as  in  jurisdiction,  it 
agrees  with  the  just  demands  of  sovereignty,  of  which  it  is  only  an  enlightened 
exercise.  For,  if  there  is  no  power  superior  to  the  States  which  can  force  a 
judge  upon  them,  there  is  nothing  to  oppose  their  selection  of  an  arbitrator  by 
common  agreement  to  settle  their  disputes,  thus  preferring  a  less  imperfect 
means  of  securing  justice  to  a  method  more  problematical  and  more  burdensome. 

Chapter  I. — The  system  of  arbitration 

Article  15 

International  arbitration  has  for  its  object  the  settlement  of  dispates  between  States  by 
judges  of  their  own  choice,  and  on  the  basis  of  respect  for  law. 

International  arbitration  does  not  aspire  to  supplant  direct  negotiation:  it  is 
applicable  to  disputes  which  could  not  be  settled  by  diplomatic  means. 

Furthermore  it  does  not  prevent  mediation;  by  the  very  fact  that  the  latter 
can  proceed  on  the  basis  of  conciliation  and  compromise,  it  possesses  resources 
for  settlement  which  arbitration  does  not  have. 

Among  all  methods  for  the  settlement  of  differences  between  States  arbi- 
tration occupies  a  distinct  position  and  preserves  its  own  character. 

Article  15  concisely  describes  this  position  and  character. 

International  arbitration  settles — that  is  to  say,  decides  finally — international 
disputes  which  are  submitted  to  it. 

It  settles  these  disputes  on  the  basis  of  respect  for  law,  according  to  the 
demands  of  justice. 

It  settles  them  by  means  of  judges  chosen  by  virtue  of  the  agreement  of  the 
States  themselves. 

Such  are  the  fundamental  features  of  arbitration. 

Article  16 

In  questions  of  a  legal  nature,  and  especially  in  the  interpretation  or  application  of 
international  conventions,  arbitration  is  recognized  by  the  signatory  Powers  as  the  most 
effective,  and  at  the  same  time  the  most  equitable,  means  of  settling  disputes  which 
diplomacy  has  failed  to  settle. 

Article  16  determines  the  nature  of  controversies  which  are  within  the  proper 
jurisdiction  of  arbitration.  These  are  questions  of  a  legal  nature  and  principally 
questions  of  the  interpretation  or  application  of  treaties.  It  is  not  difficult  to 
perceive  the  bond  which  unites  the  institution  of  arbitration  with  the  safeguarding 
of  the  principle  of  good  faith  in  international  agreements. 

To  say  that  the  arbitrator  is  judge  and  acts  according  to  law  is  to  say  that 
arbitration  is  not  applicable  to  every  variety  of  dispute  between  States.  Dif- 
ferences where  the  opposing  claims  of  the  parties  cannot  be  stated  as  legal  proposi- 
tions are  thus,  to  some  extent,  by  their  very  nature,  outside  of  the  jurisdiction  of 
an  institution  called  upon  to  "  speak  the  law."  Conflicting  interests,  differences 
of  a  political  nature,  do  not  belong,  properly  speaking,  to  arbitration. 

But  for  differences  which  have  the  character  of  disputes  as  to  questions  of 


120  PLENARY  CONFERENCE 

law,  and  which  cannot  be  settled  through  the  ordinary  diplomatic  channels,  Article 
16  recognizes  that  arbitration  is  the  surest  and  most  equitable  method  of  arriving 
at  a  peaceful  solution.  It  is  the  most  effective  because  it  settles  the  disputed 
question  finally.  It  is  the  most  equitable,  because  it  renders  to  each  what  is 
justly  due  to  it. 

Article  16,  however,  does  not  go  beyond  that  general  recognition.  It  does 
not  contain  the  positive  agreement  of  a  given  Power,  confronting  some  other, 
to  refer  a  given  dispute  to  arbitration.  Under  the  provisions  of  the  present  Con- 
vention each  State  decides  in  its  sovereign  capacity,  from  its  own  view-point, 
whether  this  or  that  case  shall  be  submitted  to  arbitration — under  the  restriction 
imposed  by  obligations  which  it  may  have  contracted  by  other  treaties. 

Such  is  the  scope  of  Article  16. 

Mr.  Beldiman  requested  note  to  be  made  of  the  following  declaration : 

The  Royal  Government  of  Roumania,  being  completely  in  favor  of  the 
principle  of  voluntary  arbitration,  of  which  it  appreciates  the  great  import- 
ance in  international   relations,   nevertheless  does  not  intend  to  assume, 
[85]  by  Article   15    (Article   16  here),  an  obligation  to  accept  arbitration  in 
every  case  there  provided  for,  and  it  believes  it  ought  to  state  express 
reservations  upon  this  point. 

It  cannot  therefore  vote  for  this  article  except  under  that  reservation. 

Article  17 
The  arbitration  convention  is  concluded  for  questions  already  existing  or  for  questions 
which  may  arise  eventually. 

It  may  embrace  any  dispute  or  only  disputes  of  a  certain  category. 

Article  17  contains  no  agreement  on  the  part  of  the  Powers,  but  it  determines 
in  a  convenient  manner  what  the  agreement  to  arbitrate  may  contain. 

The  agreement  to  arbitrate  may  be  concluded  after  the  origin  of  one  or  more 
disputes  in  order  to  secure  the  judicial  settlement  thereof.  Properly  speaking 
it  is  the  compromis. 

It  may  deal  also  with  possible  disputes,  that  is  to  say,  simply  with  those  which 
may  arise  in  the  future.  That  is  the  clause  providing  for  the  making  of  a 
compromis. 

The  validity  of  such  a  provision  is  not  admitted  in  national  law  by  all  positive 
legislation;  jurisprudence  is  not  everywhere  settled  upon  this  point.  In  inter- 
national law,  it  would  seem  impossible  for  doubt  to  exist.  The  agreement  to 
enter  into  a  compromis  does  not  create  an  institution  to  compete  with  official 
tribunals ;  it  creates  an  organic  institution  of  justice  itself,  in  a  sphere  where  this 
institution  is  lacking. 

The  agreement  to  enter  into  a  compromis  may  be  special  and  contemplate 
one  or  several  particular  classes  of  disputes  out  of  all  the  disputes  of  a  legal 
character  among  States.  The  theory  of  this  class  of  stipulations  is  worth  noting. 
States  are  endeavoring  to  protect  themselves  against  their  own  passions  in  the 
future,  adopting  the  method  of  peaceful  solution  before  the  birth  of  controversies, 
and  providing  in  advance  in  certain  classes  of  their  relations  for  peace  based  upon 
a  treaty. 

The  agreement  to  enter  into  a  compromis  may  also  be  general :  it  then 
embraces  all,  or  at  least  almost  all,  disputes  between  States.  It  is  a  general  treaty 
of  arbitration,  a  real  organic  contract  for  a  judicial  peace,  positive  sanction  of 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  121 

arbitration  as  the  proper,  normal  mode,  accepted  in  advance,  for  the  settlement 
of  international  disputes. 

The  present  status  of  positive  international  law,  from  the  point  of  view  of 
the  different  ways  in  which  the  contract  for  arbitration  has  been  extended,  is 
characterized  by  the  following  features : 

1.  Increasing  growth  in  the  number  of  compromis  applying  arbitration 
to  disputes  which  have  already  arisen.  The  treaty  law  of  England  and  the 
United  States  offers  us  the  most  numerous  cases  where  compromis  have  been 
concluded  for  such  disputes. 

2.  Increase  of  provisions  for  entering  into  compromis  covering  par- 
ticular classes,  more  or  less  numerous,  of  disputes  which  may  arise  in  the 
future.  We  have  endeavored  to  enumerate  these  provisions  in  a  "  General 
survey  of  the  clauses  of  mediation  and  arbitration  "  made  at  the  request  of 
the  Third  Commission  of  the  Conference.  The  greater  number  of  these 
clauses  belong  to  the  law  of  special  treaties  between  two  States.  Some  of 
them  are  common  to  all  Powers  or  to  a  considerable  group  of  them,  like  the 
provision  for  entering  into  a  compromis  contained  in  the  convention  known 
as  the  "  Universal  Postal  Union." 

3.  The  conclusion  of  certain  conventions  extending  the  provision  for 
entering  into  a  compromis,  either  to  all  controversies  without  exception  be- 
tween States,  or  to  all  these  disputes,  with  a  necessary  qualification  with 
respect  to  that  class  of  disputes  which  States  do  not  believe  they  can  submit 
to  the  possibilities  of  arbitration. 

The  declaration  between  the  Netherlands  and  Portugal  dated  July  5,  1894, 
contains  a  provision  for  entering  into  a  compromis  with  reservation.  It  is  drawn 
up  in  these  words : 

All  questions  or  all  differences  concerning  the  interpretation  or  execution 
of  the  present  declaration  and  also  every  other  question  which  may  arise 
between  the  two  countries,  provided  that  it  does  not  concern  their  inde- 
pendence nor  autonomy,  if  it  cannot  be  settled  in  a  friendly  manner,  shall 
be  submitted  to  the  decision  of  two  arbitrators,  one  of  whom  shall  be  named 
by  each  of  the  two  Governments.  In  case  of  difference  of  opinion  between 
the  two  arbitrators,  they  shall  designate  by  common  agreement  a  third  who 
shall  decide. 

The  treaty  of  arbitration  between  Italy  and  the  Argentine  Republic,  dated 
July  23,  1898,  contains  a  provision  for  the  making  of  compromis  without  reser- 
vation.    It  is  as  follows : 

Article  1 

The  high  contracting  Parties  bind  themselves  to  submit  to  arbitral 
decision  all  disputes,  whatever  may  be  their  nature  and  cause,  which  may 
arise  between  the  said  parties,  if  they  have  not  been  able  to  settle  them  in  a 
friendly  manner  by  direct  diplomatic  negotiation.  The  arbitral  clause  extends 
even  to  disputes  which  may  have  arisen  prior  to  the  stipulation  of  the  said 
treaty. 

Among  the  general  provisions  for  arbitration  negotiated  between  Powers 

represented  at  the  Conference,  but  as  yet  existing  in  tentative  form  only, 

[86]  it  is  important  to  note  the  draft  adopted  by  the  Swiss  Federal  Council, 

July  24,  1883,  and  presented  to  the  Government  of  the  United  States; 


122  PLENARY  CONFERENCE 

the  draft  worked  out  by  the  Pan  American  Conference  which  began  in  Wash- 
ington on  October  2,  1889,  and  closed  April  19,  1890;  the  draft  treaty  between 
the  United  States  and  Great  Britain,  signed  at  Washington,  April  11,  1897. 

These  various  documents  have  often  been  referred  to  in  the  course  of  the 
discussions. 

At  the  time  of  the  deliberations  in  the  Commission  concerning  Article  17, 
Mr.  Beldiman  asked  that  the  following  declaration  be  noted  in  the  minutes : 

The  Royal  Government  of  Roumania  declares  that  it  is  unable  to  adhere 
to  Article  16  (Article  17  here)  except  under  the  express  reservation  noted 
in  the  proces-verhal,  that  it  is  determined  not  to  accept  in  any  case  an  inter- 
national arbitration  of  disputes  and  differences  arising  prior  to  the  conclusion 
of  the  present  convention. 

Article  18 

The  arbitration  convention  implies  an  engagement  to  submit  in  good  faith  to  ttie 
arbitral  award. 

In  arbitration  the  disputing  States  by  agreement  refer  the  settlement  of  their 
disputes  to  the  judgment  of  one  or  several  persons  endowed  with  the  power  of 
"  stating  the  law  "  for  the  parties  to  the  cause. 

The  obligation  to  submit  in  good  faith  to  the  arbitral  decision  is,  under  these 
conditions,  a  positive  obligation  implied  in  the  convention  entered  into.  An 
arbitration  is  not  an  attempt  at  conciliation.  The  characteristic  feature  of  arbi- 
tration is,  to  be  exact,  the  common  submission  by  the  States  to  a  judge  of  their 
choice,  with  the  agreement,  which  naturally  flows  therefrom,  to  carry  out  the 
sentence  loyally.  In  the  absence  of  special  provisions  in  the  compromis  attaching 
some  particular  effect  or  other  to  an  arbitral  decision,  and  except  for  the  use  of 
legitimate  methods  of  appeal,  the  failure  to  carry  out  the  decision  of  the  arbi- 
trators is  no  more  permissible  in  law  than  the  violation  of  contracts,  and  this  for 
the  very  reason  that  it  is  in  fact  the  violation  of  a  contract. 

The  original  draft  of  Article  18  was  as  follows : 

The  arbitration  convention  contains  an  engagement  to  submit  in  good 
faith  to  the  arbitral  award. 

The  word  "  implies  "  substituted  for  the  word  "  contains  "  at  the  suggestion 
of  Mr.  RoLiN,  clearly  accentuates  from  our  point  of  view  the  character  and  con- 
sequences of  the  agreement  to  arbitrate. 

Article  19 

Independently  of  general  or  private  treaties  expressly  stipulating  recourse  to  arbitration 
as  obligatory  on  the  signatory  Powers,  these  Powers  reserve  to  themselves  the  right  of  con- 
cluding, either  before  the  ratification  of  the  present  act  or  later,  new  agreements,  general 
or  private,  with  a  view  to  extending  arbitration  to  all  cases  which  they  may  consider  it 
possible  to  submit  to  it. 

This  article  replaces  Articles  8-12  of  the  draft  proposed  by  the  Russian 
delegation.  This  draft,  accepted  in  its  principal  features,  at  first  reserved  entirely 
questions  of  law  touching  the  vital  interests  or  national  honor  of  the  parties  in 
controversy. 

As  for  other  controversies,  it  divided  them  into  two  classes.    One,  composed 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  123 

of  two  subdivisions  only,  of  dearly  specified  controversies,  was  made  the  subject 
of  obligatory  arbitration.  The  other — and  this  by  far  the  larger — was  given 
over  to  voluntary  arbitration,  with  a  recommendation,  however,  that  arbitration 
be  used. 

In  a  notable  explanatory  note  the  Russian  delegation  justified  the  system 
presented  by  it  in  the  following  manner: 

It  cannot  be  doubted  that  in  international  life  differences  often  arise 
which  may  absolutely  and  at  all  times  be  submitted  to  arbitration  for  solution : 
these  are  questions  which  concern  exclusively  special  points  of  law  and  which 
do  not  touch  upon  the  vital  interests  or  national  honor  of  States.  We  do 
not  desire  that  the  Peace  Conference  should,  so  far  as  these  questions  are 
concerned,  set  up  arbitration  as  the  permanent  and  obligatory  method. 

The  recognition  of  the  obligatory  character  of  arbitration,  were  it  only 
within  the  most  restricted  limits,  would  strengthen  legal  principles  in  relations 
between  nations,  would  guarantee  them  against  infractions  and  encroach- 
ments, it  would  neutralise,  so  to  speak,  more  or  less,  large  fields  of  inter- 
national law.  For  the  States,  obligatory  arbitration  would  be  a  convenient 
means  of  avoiding  the  misunderstandings,  so  numerous,  so  troublesome, 
although  of  little  importance,  which  sometimes  fetter  diplomatic  relations 
without  any  reason  therefor.  Thanks  to  obligatory  arbitration,  States  could 
more  easily  maintain  their  legitimate  claims,  and  what  is  more  important 
still,  could  more  easily  escape  from  the  unjustified  demands. 

Obligatory  arbitration  would  be  of  invaluable  service  to  the  cause  of 
universal  peace.  It  is  very  evident  that  the  questions  of  the  second 
[87]  class,  to  which  alone  this  method  is  exclusively  applicable,  very  rarely 
form  a  basis  for  war.  Nevertheless,  frequent  disputes  between  States, 
even  though  with  regard  only  to  questions  of  the  second  class,  while  not  form- 
ing a  direct  menace  to  the  maintenance  of  peace,  nevertheless  disturb  the 
friendly  relations  between  States  and  create  an  atmosphere  of  distrust  and 
hostility  in  which  some  incident  or  other,  like  a  chance  spark,  may  more 
easily  cause  war  to  burst  forth.  Obligatory  arbitration,  resulting  in  absolving 
the  interested  States  from  all  responsibility  for  any  solution  of  the  difference 
existing  between  them,  seems  to  be  fitted  to  contribute  to  the  maintenance  of 
friendly  relations,  and  in  that  way  to  facilitate  the  peaceful  settlement  of  the 
most  serious  conflicts  which  may  arise  within  the  field  of  their  most  important 
mutual  interests. 

At  the  same  time  that  they  outlined  in  this  way  the  lofty  sphere  of  obligatory 
arbitration,  the  authors  of  the  project  recognized  the  necessity  of  determining, 
with  precision  and  care,  the  field  within  which  this  arbitration  could  be  applied. 

In  this  work  they  decided  upon  two  classes  of  international  controversies : 

1.     Pecuniary  claims  to  recover  for  unlawful  injuries. 

The  history  of  international  relations  proves  without  doubt  that  in  the 
great  majority  of  cases  demands  for  damages  by  way  of  indemnity  are  the 
very  cases  which  have  been  the  subject  of  arbitration.  ...  It  goes  without 
saying  that  in  exceptional  cases  where  the  pecuniary  qiestion  involved 
assumes  a  position  of  first  importance  as  regards  the  interests  of  the  State 
—for  example,  in  a  case  concerning  the  bankruptcy  of  a  State— each  Power, 
invoking  national  honor  or  vital  interests,  has  the  power  to  decline  arbitration 
as  a  means  of  deciding  the  dispute. 


124  PLENARY  CONFERENCE 

2.  The  interpretation  or  application  of  certain  international  conventions 
which  have  not  a  political  character,  and,  above  all,  of  treaties  known  as 
"  universal  unions." 

Since  treaties,  as  a  general  rule,  are  only  artificial  settlements  of  opposing 
interests,  treaties  of  a  universal  character  always  express  necessarily  the 
agreement  upon  common  and  identic  interests.  That  is  the  reason  that  within 
the  scope  of  these  treaties  serious  disputes  incapable  of  settlement,  or  conflicts 
of  a  national  character  in  which  the  interests  of  one  are  absolutely  opposed  to 
those  of  another,  never  arise  and  cannot  arise.  So  far  as  momentary  mis- 
understandings are  concerned — concerning  their  interpretation,  each  State 
will  willingly  confide  the  solution  to  an  arbitral  tribunal,  it  being  understood 
that  all  the  Powers  have  an  equal  interest  in  maintaining  the  treaties  in 
question,  which  serve  as  bases  for  extensive  and  complex  systems  of  inter- 
national institutions  and  regulations  which  are  the  only  means  of  serving 
vital  and  permanent  needs. 

It  should  be  noticed  that  the  first  attempt  to  introduce  obligatory  arbi- 
tration into  international  practice  was  in  fact  made  in  a  treaty  of  a  universal 
character,  that  relating  to  the  Postal  Union  of  1874 :  Article  16  of  this  treaty 
establishes  obligatory  arbitration  for  the  solution  of  all  the  differences  arising 
with  reference  to  the  interpretation  and  application  of  the  treaty  in  question. 

The  Hague  Conference  would  seem  therefore  to  be  perfectly  justified  in 
extending  the  provisions  of  Article  16  of  the  treaty  of  Berne  to  all  treaties 
of  a  universal  character,  which  are  entirely  analogous  to  this  one. 

The  general  system  proposed  by  the  Russian  delegation  having  been  approved 
by  the  committee,  the  latter  gave  itself  up  to  a  detailed  examination  of  Article  10 
of  the  advance  draft  presented  by  this  delegation. 

With  regard  to  pecuniary  claims,  the  committee  examined  the  question 
whether  it  was  suitable  to  limit  the  requirement  of  obligatory  arbitration  either 
to  claims  not  exceeding  a  certain  sum  for  indemnity — a  provision  which  is  found 
in  the  Anglo-American  draft  treaty — or  to  cases  where  the  principle  of  indemnity 
is  recognized  by  the  parties.     This  last  guaranty  was  provisionally  adopted. 

In  dealing  with  conventions  the  interpretation  or  application  of  which  should 
be  eventually  submitted  to  obligatory  arbitration,  the  committee  could  not  secure 
?.  unanimous  vote  for  the  retention  of  monetary  conventions  and  conventions  rela- 
tive to  the  navigation  of  international  rivers  and  interoceanic  canals.  Conse- 
quently, these  treaties  were  provisionally  laid  aside.  Treaties  regarding  civil 
procedure  and  providing  for  free  assistance  by  both  parties  to  the  indigent  sick 
were  added  to  the  original  list.  Commercial  treaties  and  the  Geneva  Convention, 
the  addition  of  which  was  also  proposed,  met  a  less  favorable  fate.  The  other 
treaties  first  mentioned  were  retained. 

The  text  of  Article  10  as  amended  is  as  follows : 

Arbitration  is  obligatory  between  the  high  contracting  Powers  in  the 
following  cases,  so  far  as  they  do  not  concern  the  vital  interests  or  national 
honor  of  the  States  in  controversy : 
[88]         I.    In  case  of  disputes  concerning  the  interpretation  or  application  of  the 
conventions  enumerated  herein : 

1.  Postal,  telephone,  and  telegraph  conventions. 

2.  Conventions  concerning  the  protection  of  submarine  cables. 

3.  Conventions  concerning  railroads. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  125 

4.  Conventions  and  regulations  concerning  means  of  preventing  col- 
lisions of  vessels  at  sea. 

5.  Conventions   concerning  the  protection  of   literary  and  artistic 
works, 

6.  Conventions    concerning   the    protection    of    industrial   property 
(patents,  trade-marks,  and  trade-names). 

7.  Conventions  concerning  the  system  of  weights  and  measures. 

8.  Conventions  concerning  reciprocal  free  assistance  to  the  indigent 
sick. 

9.  Sanitary  conventions,  conventions  concerning  epizooty,  phylloxera, 
and  other  similar  scourges. 

10.  Conventions  concerning  civil  procedure. 

11.  Extradition  conventions. 

12.  Conventions  for  delimiting  boundaries  so  far  as  they  touch  upon 
purely  technical  and  non-political  questions. 

II.     In  the  case  of  disputes  concerning  pecuniary  claims  for  damages 
when  the  principle  of  indemnity  is  recognized  by  the  Parties. 

Articles  8-12  of  the  Russian  draft  were  adopted  as  a  whole  with  these  con- 
ditions, except  for  final  drafting.  Upon  the  second  reading,  a  request  was  made 
for  the  omission  of  Article  10  by  Dr.  Zorn,  German  delegate,  who  declared  that 
his  Government,  without  desiring  to  modify  those  conventions  which  at  the 
present  time  sanction  obligatory  arbitration,  does  not  believe  that  experience 
to-day  is  sufficient  to  justify  a  more  general  and  immediate  development  of  these 
conventions.  He  added  that  a  too  rapid  introduction  of  obligatory  arbitration 
into  international  law  might  present  more  dangers  than  advantages  from  the 
point  of  view  of  peace  among  nations.  A  new  Russian  proposition  tending  to 
sanction  obligatory  arbitration  for  cases  only  on  which  agreement  had  been 
reached  by  previous  conventions,  and  to  recommend  specially  recourse  to  arbitra- 
tion for  the  other  cases  mentioned  in  the  list  previously  adopted,  brought  forth  ob- 
jections of  various  kinds  and  was  unable  to  secure  general  support.  In  this  situa- 
tion, and  without  finally  binding  themselves,  the  members  of  the  committee  deemed 
it  desirable  to  adopt  in  place  of  Articles  8-12  of  the  Russian  draft,  a  single  article 
containing  a  twofold  provision. 

The  first  calls  attention  to  the  general  treaties  and  the  special  treaties  which 
already  provide  an  obligation  on  the  part  of  the  signatory  Powers  to  resort 
to  arbitration. 

The  second  is  a  declaration  Dy  which  the  Powers  reserve  the  right  to  con- 
clude, either  before  the  ratification  of  the  present  treaty,  or  afterward,  new 
agreements,  general  or  special,  with  a  view  to  extending  obligatory  arbitration 
to  all  cases  which  they  deem  possible  of  submission  thereto.  It  is  important,  in 
short,  to  note  that  if  agreement  to  a  considerable  extension  of  the  sphere  of 
obligatory  arbitration  cannot  be  reached,  all  the  Powers  retain  the  greatest  free- 
dom for  the  realization  of  their  ideals  in  this  matter,  not  only  by  means  of  special 
treaties  between  two  States,  but  by  means  of  conventions  of  as  universal  a  char- 
acter as  possible.  The  future  therefore  remains  largely  open  for  the  realization 
of  all  progress  in  this  respect,  a  realization  which  will  be  due  entirely  to  volun- 
tary action,  too,  as  was  declared  by  Messrs.  Beldiman  and  Veljkovitch. 

All  the  members  of  the  committee  recognized  the  fact  that  the  vote  cast 
under  these  circumstances  was  in  the  nature  of  a  compromise,  inspired  by  the 


126  PLENARY  CONFERENCE 

desire  to  secure  unanimous  agreement  to  the  propositions  to  be  presented  to 
the  Commission. 

Chapter  II. — The  Permanent  Court  of  Arbitration 

No  project  was  welcomed  with  more  sympathy  than  that  for  the  estabHsh- 
ment  of  a  Permanent  Court  of  Arbitration.  The  suggestion  made  by  his  Excel- 
lency Sir  Julian  Pauncefote  for  this  purpose  was  brilliantly  presented  at  the 
opening  of  our  sessions. 

To  recall  at  this  point  this  memorable  and  fruitful  suggestion  is  but  to 
fulfil  a  duty  to  justice  and  to  indicate  at  the  same  time  the  general  field  of  our 
work  upon  this  subject. 

At  the  session  of  May  26,  1899,  his  Excellency  Sir  Julian  Pauncefote 
made  the  following  remarks : 

Mr.  President,  permit  me  to  ask,  before  going  further  in  this  matter, 

whether  it  would  not  be  useful  and  opportune  to  sound  the  Commission 

[89]  upon  the   subject  of   the  most   important  question — as   I   believe — which 

you    mentioned    in   your   address,  the    establishment   of    an    international 

Permanent  Court  of  Arbitration. 

Many  codes  of  arbitration  and  rules  of  procedure  have  been  made,  but 
procedure  has  been  regulated  up  to  the  present  by  the  arbitrators  and  by 
special  or  general  treaties. 

Now,  it  seems  to  me  that  new  codes  and  rules  of  arbitration,  whatever 
may  be  their  merit,  do  not  advance  very  much  the  great  cause  which  brings 
us  here. 

If  we  desire  to  take  a  step  in  advance,  I  believe  that  it  is  absolutely 
necessary  to  organize  a  permanent  international  tribunal  which  can  assemble 
instantly  at  the  request  of  contesting  nations.  This  idea  established,  I  be- 
lieve that  we  shall  not  have  very  much  difficulty  in  coming  to  an  under- 
standing upon  the  details.  The  necessity  for  such  a  tribunal  and  the  ad- 
vantages which  it  would  offer,  as  well  as  the  encouragement  and  even  impetus 
which  it  would  give  to  the  cause  of  arbitration,  have  been  set  forth  with  vigor 
and  clearness — and  equal  eloquence — by  our  distinguished  colleague,  Mr. 
Descamps,  in  his  interesting  "  Essay  upon  Arbitration,"  an  extract  from 
which  appears  among  the  acts  and  documents  so  graciously  furnished  the 
Conference  by  the  Netherland  Government.  There  is  nothing  left  for  me 
to  say  upon  this  subject,  therefore,  and  I  would  be  grateful,  Mr.  President, 
if,  before  proceeding  further,  you  would  consent  to  gather  the  ideas  and 
sentiments  of  the  Commission  upon  the  proposition  which  I  have  the  honor 
to  submit  to  you  concerning  the  establishment  of  an  international  Permanent 
Court  of  Arbitration. 

The  first  delegate  from  Great  Britain  had  given  to  the  institution  which  he 
proposed  to  organize  the  name  of  "  Permanent  Tribunal  of  Arbitration." 

Dr.  ZoRN  suggested  the  adoption  of  the  term  "  Court  of  Arbitrators."  The 
expression  "  Arbitral  Court "  seemed  for  a  time  as  though  it  ought  to  be  reserved 
to  designate  the  members  of  the  Court  acting  as  arbitrators  in  the  various  cases 
which  they  were  called  upon  to  decide.  The  term  "  Arbitral  Tribunal  "  was 
finally  agreed  upon  since  it  was  already  sanctioned  by  practice  and  as  it  was  of 
such  a  character  that  it  would  be  more  easily  accepted  by  all  the  Powers. 

The  establishment  of  a  Permanent  Court  of  Arbitration  is  in  response  to  the 
highest  aspirations  of  civilized  peoples,  to  those  ideas  of  progress  which  have 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  127 

been  realized  in  international  relations,  to  the  modern  development  of  interna- 
tional litigation,  to  the  need  which  urges  nations  in  our  day  to  seek  a  more  accessi- 
ble justice  in  a  less  uncertain  peace.  This  great  institution  can  be  a  powerful 
auxiliary  for  the  strengthening  of  the  feeling  for  law  in  the  world. 

The  organization  of  the  Court  does  not  present  insurmountable  obstacles, 
provided  we  become  imbued  with  the  idea  that  the  international  community  is  a 
society  of  coordination  and  not  of  subordination,  and  that  consequently  the  new 
instrument  of  international  justice  preserves  the  character  "of  a  free  tribunal 
among  independent  States." 

The  plan  worked  out  by  the  Interparliamentary  Union  at  Brussels  sought  to 
meet  this  fundamental  demand. 

The  drafts  submitted  at  the  Hague  Conference  by  the  -delegates  of  the 
three  great  States  have,  in  various  ways,  sought  to  realize  the  same  end. 

The  project  of  his  Excellency  Sir  Julian  Pauncefote  was  taken,  with  the 
kind  consent  of  the  authors  of  the  Russian  and  American  plans,  as  a  basis  for 
the  work  to  which  the  committee  devoted  itself. 

The  fundamental  features  of  the  English  plan  are  as  follows : 

I.  Designation  by  each  of  the  signatory  Powers  of  an  equal  number  of 
arbitrators,  entered  upon  a  general  list  as  members  of  the  Court. 

II.  Free  choice,  from  this  list,  of  arbitrators  called  upon  to  form  the 
active  tribunal  for  the  various  cases  where  resort  is  had  to  arbitration. 

III.  Institution  at  The  Hague  of  an  International  Bureau  serving  as  a 
registry  for  the  Court  and  providing  for  the  work  of  administration. 

IV.  Institution  of  a  permanent  Council  of  Administration  and  supreme 
control,  composed  of  the  diplomatic  representatives  of  the  Powers  accredited 
to  The  Hague,  under  the  presidency  of  the  Minister  of  Foreign  Affairs  of  the 
Netherlands. 

The  draft  prepared  by  the  Russian  delegation  rested  upon  the  following 
bases : 

I.  Designation  of  five  Powers  by  the  present  Conference  to  serve  for 
a  term  to  expire  at  the  meeting  of  the  next  Conference,  each  Power,  in  case 
of  a  request  for  arbitration,  to  name  a  judge  either  from  among  its  nationals 
or  others. 

II.  Establishment  at  The  Hague  of  a  permanent  Bureau  whose  duty  it 
shall  be,  when  the  occasion  arises,  to  advise  the  five  Powers  of  requests  for 
arbitration  addressed  to  it. 

The  American  plan  was  distinguished  from  the  other  plans  principally  by  the 
following  characteristics : 

[90]         I.    Nomination  by  the  highest  court  of  justice  of  each  State  of  a  mem- 
ber of  the  international  tribunal. 

II.  Organization  of  the  tribunal  as  soon  as  the  adhesion  of  nine  Powers 
thereto  should  be  assured. 

III.  Formation  of  the  Court  called  upon  to  sit  in  each  particular  case 
according  to  conventions  to  be  entered  into  between  the  States  in  controversy. 
These  conventions  may  call  upon  all  the  members  of  the  tribunal  to  sit  or 
several  of  them,  in  unequal  number — at  least  three  members.  When  the  Court 
is  composed  of  only  three  judges,  none  of  them  shall  be  a  native,  subject,  or 
citizen  of  the  States  whose  interests  are  in  controversy. 


128  PLENARY  CONFERENCE 

IV.  Right  of  the  States,  in  certain  specified  cases  and  after  a  given 
period,  to  a  second  hearing  of  the  case  before  the  same  judges. 

In  the  committee  the  general  discussion  concerning  the  institution  of  a 
Permanent  Court  of  Arbitration  assumed  a  character  of  exceptional  importance. 

The  French  delegation,  believing  that  common  principles  and  ideas  were 
to  be  found  in  the  various  plans  which  we  have  just  analyzed,  which  might 
serve  as  a  basis  for  the  discussions  of  the  Conference,  declared  that  it  did  not 
believe  it  necessary  for  it  to  submit  a  draft  of  its  own.  But,  with  the  double 
assurance  of  freedom  to  resort  to  the  permanent  tribunal  and  freedom  in  the 
choice  of  arbitrators,  it  did  not  hesitate  to  support  the  new  institution  at  once. 

Said  Mr.  Leon  Bourgeois: 

With  this  double  assurance  we  do  not  hesitate  to  support  the  idea  of  a 
permanent  institution  accessible  at  all  times  and  charged  with  the  duty  of 
applying  the  rules  and  following  the  procedure  established  by  the  Powers 
represented  at  the  Hague  Conference. 

We  agree,  therefore,  that  an  International  Bureau  should  be  established 
to  ensure  the  continuous  services  of  a  recording  office,  secretarial  staff,  a 
continuous  set  of  archives  concerning  arbitration ;  we  believe  that  the  con- 
tinuity of  these  services  is  absolutely  necessary  not  only  to  the  maintenance 
of  a  common  point  for  intercourse  between  nations,  and  to  render  more 
certain  uniformity  of  procedure,  and,  later,  uniformity  of  jurisprudence,  but 
also  to  bring  to  the  attention  of  all  peoples,  by  some  visible  and  respected 
token,  the  high  ideal  of  law  and  humanity  for  the  realization  of  which 
civilized  States  are  permitted  to  strive  through  the  invitation  of  His  Majesty 
the  Emperor  of  Russia. 

The  French  delegation  considers  it  possible  to  give  this  permanent  insti- 
tution a  more  powerful  position.  It  believes  that  the  Bureau  could  be  given 
international  authority,  definitely  limited,  to  begin  proceedings,  sufficient  in 
most  cases  to  facilitate  recourse  to  arbitration  by  the  Powers. 

If  one  of  the  disputes  recognized  by  the  Convention  as  properly  subject 
to  arbitration  should  arise  between  two  or  more  of  the  signatory  States,  the 
Permanent  Bureau  would  have  authority  to  call  the  attention  of  the  disputant 
parties  to  the  articles  of  the  Convention  governing  this  subject  and  the  power 
or  obligation  agreed  to  therein  to  resort  to  arbitration  in  that  case;  conse- 
quently it  would  offer  to  serve  as  an  intermediary  between  them  to  set  arbitral 
procedure  in  motion,  and  give  them  access  to  its  jurisdiction. 

It  is  often  a  legitimate  prejudice,  a  sentiment  of  the  highest  character, 
which  actually  prevents  two  nations  from  resorting  to  the  path  of  pacific 
settlement.  In  the  existing  state  of  public  opinion  the  first  of  the  two  Gov- 
ernments to  ask  for  arbitration  may  fear  that  its  taking  the  initiative  will 
be  considered  even  in  its  own  country  as  an  act  of  weakness,  and  not  as  an 
evidence  of  its  confidence  in  its  own  right. 

By  giving  the  Permanent  Bureau  a  special  power  to  initiate  proceedings, 
we  believe  we  could  avoid  this  apprehension.  In  avoiding  a  scruple  of  a 
similar  character,  but  in  cases  of  a  more  serious  and  more  general  nature, 
the  Third  Commission  did  not  hesitate  to  recognize  that  neutrals  had  the 
right  to  offer  mediation,  and  to  encourage  them  to  exercise  this  right  it 
declared  that  their  intervention  could  not  be  considered  as  an  unfriendly 
act.  With  all  the  more  reason,  in  the  special  cases  provided  for  in  the  present 
Convention  for  arbitral  procedure,  it  is  possible  to  give  to  the  Permanent 
Bureau  a  well-defined  authority  to  initiate  action.  It  will  be  given  the  power 
to  call  the  attention  of  the  parties  to  the  articles  of  the  international  Con- 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  129 

vention  which  may  seem  to  have  provided  for  the  dispute  which  divides  them, 
and  will  ask  them,  consequently,  if,  under  circumstances  anticipated  by  them- 
selves, they  will  consent  to  resort  to  arbitral  procedure,  that  is  to  say,  simply 
to  carry  out  their  own  agreements.  The  answer  to  a  question  thus  put  will 
be  easy,  and  any  scruple  on  the  score  of  dignity,  which  might  perhaps  have 
prevented  all  recourse,  will  disappear.  To  set  in  action  one  of  those  powerful 
machines  by  which  science  transforms  the  world,  it  is  sufficient  to  place  one 
finger  upon  a  contact  point:  but  it  is  still  necessary  to  entrust  some  one 
with  the  duty  of  making  this  simple  motion. 

The  French  delegation  believes  that  the  institution  to  which  this  inter- 
national authority  would  be  confided  would  play  a  noble  and  useful  role  in 
history. 

[91]  The  idea  first  presented  in  these  terms  by  the  French  delegation,  later  took 
the  form  of  a  proposal  and  it  became  Article  27  of  the  present  Convention. 

The  general  discussion  opened  with  an  address  by  the  reporter,  who  set 
forth  the  prime  importance  of  the  presentation  by  three  great  Powers  of  plans 
concerning  the  establishment  of  a  Permanent  Court  of  Arbitration.  He  recalled 
the  precedents  which  most  nearly  approached  the  present  proposition.  He 
insisted  upon  the  necessity  of  developing  and  solidifying  the  organic  institutions 
of  peace. 

With  regard  to  the  reservations  of  Dr.  Zorn,  German  delegate,  concerning 
the  future  establishment  of  a  Permanent  Court  of  Arbitration — an  institution 
considered  premature  and  too  far  removed  from  the  original  scope  of  our  labors — 
Mr.  AssER,  delegate  from  the  Netherlands,  brought  out  the  fact  that  experiments 
with  occasional  arbitration  had  been  made  and  that  experiments  still  to  be  made 
were  the  subject  of  the  very  plan  under  discussion. 

His  Excellency  Count  Nigra,  for  his  part,  called  attention  particularly  to  the 
dangers  of  declining  to  decide  a  question  which  interests  all  humanity  to  such  a 
great  degree. 

The  impatience  with  which  public  opinion  awaits  the  results  of  our 
labors  has  become  so  great  that  it  would  be  dangerous  to  refuse  to  accept 
an  arbitral  tribunal.  If  the  Conference  should  meet  this  impatience  with  a 
non  possumus,  or  fail  to  satisfy  it,  it  would  really  be  guilty  of  deceit.  In 
that  case  the  Conference  would  incur  a  grave  responsibility  to  history,  to 
the  nations,  and  to  His  Majesty  the  Emperor  of  Russia  himself. 

Supporting  the  remarks  made  by  Count  Nigra,  Mr.  Odier,  Swiss  delegate, 
stated  that  more  than  a  mere  hope  had  been  awakened  in  the  world,  it  was  an  ex- 
pectation; and  popular  opinion  was  convinced  that,  on  the  subject  of  arbitration 
above  all,  important  results  would  come  from  the  deliberations  of  the  Conference. 

No  one  can  deny,  in  short  [said  Mr.  Odier],  that  we  are  able  at  this 
time  to  take  a  new  and  decisive  step  along  the  pathway  of  progress.  Are 
we  going  to  draw  back,  or  restrict  to  insignificant  proportions  the  scope  o£ 
this  new  thing  which  is  expected  of  us?  We  should  cause  universal  dis- 
appointment for  which  the  responsibility  would  weigh  heavily  upon  us  and 
upon  our  Governments.  The  real  improvement  which  we  could  bring  to 
humanity  is  the  formation  of  a  permanent  body  to  show  to  the  eyes  of  the 
world,  in  tangible  form,  so  to  speak,  some  progress  realized. 

Mr.  Lammasch,  delegate  from  Austria-Hungary,  without  being  able  to 
declare  that  his  Government  would  be  ready  to  support  the  establishment  of  a 


130  PLENARY  CONFERENCE 

permanent  tribunal,  considered  the  plan  of  his  Excellency  Sir  Julian  Paunce- 
FOTE  suitable  as  a  starting  point  for  the  preparatory  discussion. 

Mr.  Martens  brought  out  especially  the  voluntary  nature  of  the  permanent 
tribunal  of  arbitration  and  the  intentions  of  the  Russian  Government  in  formulat- 
ing its  first  propositions  concerning  arbitration. 

His  Excellency  Sir  Julian  Pauncefote  stated,  in  his  turn,  that  the  plan 
proposed  by  him  absolutely  and  expressly  safeguarded  the  liberty  of  the  parties. 

Mr.  HoLLS,  after  having  recalled  the  fact  that  no  country  had  spoken  with 
more  energy  than  the  United  States  in  favor  of  the  suggestion  of  the  Emperor 
of  Russia,  insisted  upon  the  necessity  of  establishing  a  permanent  tribunal,  not 
only  on  the  high  ground  of  the  interests  of  humanity,  but  from  a  practical  and 
experimental  point  of  view.  He  said  that  public  opinion  is  anxjous.  He  be- 
lieved that  we  should  have  accomplished  nothing  positive  if  we  separated  without 
having  established  a  permanent  tribunal  of  arbitration. 

Article  20 

With  the  object  of  facilitating  an  immediate  recourse  to  arbitration  for  international 
differences,  which  it  has  not  been  possible  to  settle  by  diplomacy,  the  signatory  Powers 
undertake  to  organize  a  Permanent  Court  of  Arbitration,  accessible  at  all  times  and  oper- 
ating, unless  otherwise  stipulated  by  the  parties,  in  accordance  with  the  rules  of  procedure 
inserted  in  the  present  Convention. 

Article  20  of  the  plan  proposed  by  the  committee  is  the  reproduction,  except 
for  some  points  of  detail,  of  the  first  article  of  the  English  plan  concerning  the 
Permanent  Court  of  Arbitration. 

This  article  clearly  determines  the  general  purpose  of  the  institution  of  the 
Court :  "  facilitating  an  immediate  recourse  to  arbitration  for  international  dif- 
ferences, which  it  has  not  been  possible  to  settle  by  diplomacy." 

It  contains  the  agreement  made  by  the  signatory  Powers  to  organize  the 
Permanent  Court  of  Arbitration. 

It  indicates  the  general  rules  of  procedure  under  which  the  new  institution 
will  act:  these  are  the  rules  inserted  in  the  present  Convention  in  the  chapter 
on  arbitral  procedure,  so  far  as  they  agree  with  the  organization  of  the  Court 
as  it  is  determined  by  Articles  20-30,  and  except  for  the  right  of  the  parties  to 
agree  upon  other  rules. 

Article  21 

[92]    The  Permanent  Court  shall  be  competent  for  all  arbitration  cases,  unless  the  parties 
agree  to  institute  a  special  tribunal. 

This  article  was  proposed  by  the  Russian  delegation  with  a  view  to  stating 
precisely  and  clearly  a  twofold  point:  the  general  jurisdiction  of  the  Court  for 
every  case  of  arbitration,  whether  obligatory  or  voluntary;  the  right  retained 
ty  the  Powers  to  form  special  tribunals  distinct  from  the  Court. 

This  provision  is,  in  a  way,  the  translation  into  the  law  of  nations  of  the 
fundamental  maxim  to  which  we  have  already  called  attention :  "  A  free  tribunal 
among  independent  States." 

Count  DE  Macedo  suggested,  in  this  connection,  the  adoption  of  a  provision 
•declaring  that  "  the  signatorv  Powers  agree  that  they  prefer  the  jurisdiction  of 
the  Permanent  Court  of  Arbitration  to  any  other  special  jurisdiction,  on  every 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  131 

occasion  where  circumstances  will  permit."  This  provision  was  very  favorably 
received.  If  it  was  not  inserted  in  the  Convention  it  is,  first,  because  we  desired 
to  avoid  too  direct  action  with  regard  to  the  freedom  of  States ;  secondly,  because 
we  believed  that  the  sanction  of  the  general  jurisdiction  of  the  Court  in  Article 
21  indicates  sufficiently  the  desire  of  the  Powers. 

Without  fully  sharing  this  opinion.  Count  de  Macedo  stated  that  he  would 
not  press  his  proposition. 

Article  22 

An  International  Bureau,  established  at  The  Hague,  serves  as  registry  for  the  Court. 

This  Bureau  is  the  channel  for  communications  relative  to  the  meetings  of  the  Court. 

It  has  the  custody  of  the  archives  and  conducts  all  the  administrative  business. 

The  signatory  Powers  undertake  to  communicate  to  the  International  Bureau  at  The 
Hague  a  duly  certified  copy  of  any  conditions  of  arbitration  arrived  at  between  them,  and 
of  any  award  concerning  them  delivered  by  a  special  tribunal. 

They  undertake  likewise  to  communicate  to  the  Bureau  the  laws,  regulations,  and 
documents  eventually  showing  the  execution  of  the  awards  given  by  the  Court. 

This  article  corresponds  with  Article  2  of  the  English  draft  and  i^  to  a 
large  extent  a  reproduction  thereof. 

The  name  of  "  International  Bureau  "  was  substituted  for  that  of  "  Central 
Bureau  "  at  the  request  of  the  reporter. 

The  proposition  for  establishing  at  The  Hague  an  International  Bureau 
to  serve  as  registry  office  of  the  Permanent  Court  of  Arbitration,  was  received 
with  the  most  lively  sympathy. 

The  committee  thought  it  possible  to  concentrate  at  The  Hague,  as  in  some 
rich  depository,  the  most  important  documents  concerning  the  operation  of  all 
arbitral  Courts,  general  or  special. 

Two  provisions  proposed  by  Messrs.  Asser,  delegate  from  the  Netherlands, 
and  Martens,  Russian  delegate — and  forming  the  last  two  paragraphs  of  Article 
22 — were  adopted  by  the  committee  for  this  purpose. 

The  archives  of  the  International  Bureau  at  The  Hague,  thus  developed, 
will  be  of  the  greatest  importance  and  of  the  greatest  value. 

Mr.  RoLiN  asked  that  the  words  "  duly  certified  "  be  added  to  the  word 
"  copy  "  of  paragraph  4.    This  proposition  was  accepted. 

The  American  delegation  urged  broad  provisions  regarding  the  communica- 
tion of  documents  in  all  forms  of  which  the  recording  office  of  the  Court  has 
charge  and  custody.  The  committee  decided  that  it  should  above  all  consider 
the  rights  of  the  interested  States  in  the  matter.  With  these  restrictions,  the 
committee  believed  that  the  general  provisions  of  Article  22  and  the  regulations 
to  be  carried  out  by  virtue  of  these  provisions,  would  permit  every  legitimate 
satisfaction  of  the  desire  expressed  by  the  American  delegation. 

Article  23 

Within  the  three  months  following  its  ratification  of  the  present  act,  each  signatory 
Power  shall  select  four  persons  at  the  most,  of  known  competency  in  question  of  inter- 
national law,  of  the  highest  moral  reputation,  and  disposed  to  accept  the  duties  of  arbitrators. 

The  persons  thus  selected  shall  be  inscribed,  as  members  of  the  Court,  in  a  list  which 
shall  be  notified  to  all  the  signatory  Powers  by  the  Bureau. 

Any  alteration  in  the  list  of  arbitrators  is  brought  by  the  Bureau  to  the  knowledge  of 
the  signatory  Powers. 


132  PLENARY  CONFERENCE 

[93]  Two  or  more  Powers  may  agree  on  the  selection  in  common  of  one  or  more  members. 
The  same  person  can  be  selected  by  different  Powers. 

The  members  of  the  Court  are  appointed  for  a  term  of  six  years.  Their  appointments 
can  be  renewed. 

In  case  of  the  death  or  retirement  of  a  member  of  the  Court,  his  place  is  filled  in  the 
same  way  as  he  was  appointed. 

The  fundamental  provision  of  this  article  still  corresponds  exactly  with  the 
proposition  of  Article  3  of  the  plan  of  his  Excellency  Sir  Julian  Pauncefote. 
Each  Power  designates  an  equal  number  of  arbitrators,  and  the  persons  thus 
designated  are  entered  as  members  of  the  Court  upon  a  general  list. 

The  following  modifications  were  adopted  by  the  committee. 

In  the  original  draft,  each  State  designated  two  arbitrators.  Upon  the 
suggestion  of  Dr.  Zorn,  delegate  from  Germany,  this  number  was  increased  to 
four.  It  will  be  easier,  under  these  conditions,  for  the  States  who  desire  it,  to 
appoint  members  of  diversified  abilities  on  their  arbitral  delegations. 

The  increase  in  the  number  of  arbitrators  to  be  designated  by  the  States 
was,  however,  regretted  by  many  members  who  pointed  out  the  practical  incon- 
veniences of  this  provision  from  many  points  of  view.  Count  de  Macedo  even 
took  the  initiative  for  a  return  to  the  original  number.  The  number  of  four 
arbitrators  was  finally  accepted  by  agreements  and  compromise. 

The  original  plan  did  not  fix  any  exact  limit  to  the  time  for  which  the  arbi- 
trators should  be  designated.  The  committee  thought  that  there  was  reason  for 
adopting  the  term  of  six  years,  stipulating  that  the  appointment  could  be  renewed. 

It  is  admitted  that  two  Powers  can  by  agreement  designate  in  common  one 
or  several  members  of  the  Court  and  the  same  person  may  be  designated  by 
different  Powers. 

These  provisions,  proposed  by  the  reporter,  are  borrowed  from  the  draft 
of  the  Interparliamentary  Conference  at  Brussels. 

In  case  of  death  or  retirement  of  a  member  of  the  Court  it  is  provided  that 
he  shall  be  replaced  according  to  the  method  provided  for  his  appointment.  It 
was  understood  that  the  word  "  retirement "  is  to  be  taken  in  a  broad  enough 
sense  to  indicate  all  events  which  may  occur. 

Mr.  Stancioff  insisted  on  stating  that  no  restriction  upon  the  freedom  of  the 
Powers  in  the  choice  of  arbitrators  should  be  made  as  regards  nationality. 

Article  24 

When  the  signatory  Powers  wish  to  have  recourse  to  the  Permanent  Court  for  the 
settlement  of  a  difference  that  has  arisen  between  them,  the  arbitrators  called  upon  to 
form  the  tribunal  competent  to  decide  this  difference  must  be  chosen  from  the  general  list 
of  members  of  the  Court. 

Failing  the  composition  of  the  arbitration  tribunal  by  direct  agreement  of  the  parties, 
the  following  course  is  pursued : 

Each  party  appoints  two  arbitrators,  and  these  together  choose  an  umpire. 

If  the  votes  are  equally  divided,  the  choice  of  the  umpire  is  entrusted  to  a  third  Power, 
selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects  a  different  Power, 
and  the  choice  of  the  umpire  is  made  in  concert  by  the  Powers  thus  selected. 

The  tribunal  being  thus  composed,  the  parties  notify  to  the  Bureau  their  determination 
to  have  recourse  to  the  Court  and  the  names  of  the  arbitrators. 

The  tribunal  of  arbitration  assembles  on  the  date  fixed  by  the  parties. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  133 

The  members  of  the  Court,  in  the  performance  of  their  duties  and  out  of  their  own 
country,  enjoy  diplomatic  privileges  and  immunities. 

This  article  corresponds  to  the  first  paragraph  of  Article  4  of  the  draft  of 
his  Excellency  Sir  Julian  Pauncefote.  It  modifies  somewhat  the  procedure 
adopted  by  that  draft  to  bring  within  the  jurisdiction  of  the  Court  the  dispute 
which  may  be  submitted  to  it.  According  to  the  original  draft  the  Powers 
which  desired  to  resort  to  the  tribunal  notified  the  secretary  of  the  International 
Bureau  of  their  intention.  The  secretary  transmitted  to  them  the  list  of  the 
members  of  the  Court,  and  the  Powers  then  proceeded  to  form  the  arbitral 
tribunal  called  upon  to  act. 

It  seemed  preferable  to  adopt  the  following  rules: 

Every  change  in  the  list  of  members  of  the  Court  is  brought  to  the 
attention  of  the  Powers  through  the  Bureau :  Article  23,  section  3,  provided 
for  this  exigency. 

From  the  general  list,  thus  kept  up  to  date,  the  choice  of  arbitrators 
should  be  made  when  the  Powers  wish  to  approach  the  Court  for  the  settle- 
ment of  a  dispute  which  has  arisen  between  them. 

The  arbitral  tribunal  may  be  constituted  at  once  by  agreement  of  the 
parties.    In  that  case  there  is  no  difficulty. 

But  it  is  very  important  to  provide  for  the  case  where  there  miay  be  no  such 
agreement,  and  to  determine,  in  that  event,  an  easy  and  sure  method  of  forming 
the  arbitral  tribunal. 

The  first  rule  would  naturally  appear  to  be:  the  nomination  by  each  party 
[94]  of  an  equal  number  of  arbitrators  and  the  designation,  by  all  of  the  latter, 
of  an  umpire,  whose  function  is  most  important  in  prospective  cases  of  equal 
division  of  votes. 

This  rule  is  good,  but  incomplete,  because  it  does  not  provide  for  a  situa- 
tion where  there  is  no  agreement  as  to  the  choice  of  the  umpire.  Hence,  the 
importance  of  a  second  rule,  complementary  to  the  first,  substituting  for  direct 
choice  a  choice  confided  to  a  third  Power  designated  by  common  agreement. 

This  rule  is  still  excellent,  but  it  is  in  its  turn  insufficient.  It  becomes 
inefficient  every  time  that  the  parties  cannot  agree  upon  this  selection  of  the 
third  Power.  Hence  the  necessity  of  a  third  rule,  in  its  turn  subsidiary  to  the 
above. 

Mr.  Lammasch  proposed  to  confide  to  the  heads  of  neutral  States  the  choice 
of  an  umpire. 

The  committee  agreed  with  the  Russian  delegation  in  admitting  that  the  most 
practical  measure  to  be  adopted  is  the  designation  by  each  interested  party  of  a 
different  Power,  authority  being  delegated  to  the  Powers  thus  designated  to 
name  the  umpire  jointly. 

In  arbitration  this  proceeding  corresponds  to  that  adopted  for  special  media- 
tion at  the  suggestion  of  Mr.  Holls.  While  not  theoretically  perfect,  it  seems  to 
be  of  a  character  to  meet  all  possibilities  for  which  it  is  practically  convenient 
to  provide. 

These  rules  are  the  same  as  those  which  we  find  again  in  the  chapter  on 
arbitral  procedure. 

Baron  Bildt  proposed  to  give  the  Powers  a  possible  right  to  challenge  the 
umpire  named  by  the  arbitrators  designated  in  the  first  place.  With  this  in  mind 
he  submitted  the  following  amendment: 


134  PLENARY  CONFERENCE 

Each  party  names  two  arbitrators  and  the  latter  together  choose  an 
umpire. 

Their  choice  must,  however,  be  submitted  to  the  approval  of  the  parties, 
each  of  whom  has  the  right  to  challenge  him  without  giving  reasons  therefor. 

In  the  latter  case,  or  in  case  of  an  equal  division  of  votes,  the  choice  of 
umpire  is  confided  to  a  third  Power,  designated  by  common  agreement  by 
the  parties. 

The  positive  approval  of  this  system  seemed  by  its  very  nature  to  cause 
difficulty.  It  was  not  deemed  necessary  by  the  committee  to  safeguard  in  practice 
the  rights  of  parties  in  litigation. 

Messrs.  Asser  and  Holls  nevertheless  urged  this  point,  that  until  the  forma- 
tion of  the  tribunal  the  arbitrators  should  be  considered  as  agents  of  their 
respective  Governments.  Baron  Bildt  on  his  part  also  supported  this  interpre- 
tation. 

The  proposal  to  accord  to  the  members  of  the  Court,  in  the  exercise  of  their 
powers,  the  enjoyment  of  diplomatic  privileges  and  immunities,  was  considered  a 
happy  addition  to  the  original  plan.  It  brings  out  the  high  position  of  the  mem- 
bers of  the  Court  and  can  only  contribute  to  increase  the  prestige  which  should 
surround  them. 

Count  DE  Grelle  Rogier,  Belgian  delegate,  supported  by  Jonkheer  van 
Karnebeek,  asked  that  the  scope  of  this  provision  be  clearly  set  forth.  To  that 
€nd  the  declaration  was  made  that  it  concerned  the  actual  exercise  of  duties  of 
arbitrator,  and  that  the  enjoyment  of  diplomatic  privileges  and  immunities  should 
be  granted  to  the  members  of  the  arbitral  tribunal  only  outside  their  own  coun- 
tries.    This  last  point  was  covered  by  the  text. 

His  Excellency  Sir  Julian  Pauncefote  believed  that  diplomatic  immunities 
should  be  accorded  to  the  arbitrators  who,  after  their  nomination,  appeared  at  the 
place  of  meeting  of  the  Court  and  then  returned  to  their  own  countries.  This 
point  was  considered  as  incidental  to  the  practice  of  international  courtesy. 

Article  25 

The  tribunal  of  arbitration  sits  ordinarily  at  The  Hague. 

Except  in  cases  of  necessity,  the  place  of  session  can  only  be  altered  by  the  tribunal 
Tvith  the  assent  of  the  parties. 

This  article,  which  corresponds  to  paragraph  2  of  Article  4  of  the  draft  of 
"his  Excellency  Sir  Julian  Pauncefote,  fixes  the  usual  seat  of  the  arbitral 
tribunal  at  The  Hague  and  permits  the  tribunal  to  sit  elsewhere  with  the  consent 
of  the  parties  in  controversy.  It  also  authorizes  the  tribunal,  in  case  of  force 
majeure,  to  proceed  to  change  its  place  of  meeting. 

The  original  draft  gave  the  tribunal  the  power  to  change  its  place  of  meet- 
ing "  according  to  the  circumstances  and  its  convenience  or  the  convenience  of 
the  parties  in  controversy."  It  seemed  necessary  not  to  divorce  the  interest  of  the 
litigating  parties  so  completely  from  the  question  of  a  change  in  the  place  of 
meeting,  and  to  provide  for  their  consent  in  this  matter. 

This  article  has  been  made  to  agree  with  Article  36,  regarding  the  meeting- 
place  of  arbitral  tribunals  in  general. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  I35 

[95]  Article  26 

The  International  Bureau  at  The  Hague  is  authorized  to  place  its  premises  and 
staff  at  the  disposal  of  the  signatory  Powers  for  the  use  of  any  special  board  of  arbitration. 

The  jurisdiction  of  the  Permanent  Court  may,  within  the  conditions  laid  down  in  the 
regulations,  be  extended  to  disputes  between  non-signatory  Powers,  or  between  signatory 
Powers  and  non-signatory  Powers,  if  the  parties  are  agreed  to  have  recourse  to  this 
tribunal. 

The  first  paragraph  of  this  article  is  new.  It  was  proposed  by  his  Excel- 
lency Sir  Julian  Pauncefote  and  Mr.  Asser,  with  a  view  to  permitting  the 
Powers  which  might  establish  special  courts  to  profit,  if  agreeable  to  them,  by 
the  offices  established  and  the  administrative  force  acting  at  The  Hague. 

The  Powers  non-signatory  to  the  present  Convention  will  not  enjoy  the 
same  favor  when  they  establish  special  courts.  But  access  to  the  jurisdiction  of 
the  Permanent  Court  of  Arbitration  may  be  given  them.  The  draft  of  his  Excel- 
lency Sir  Julian  Pauncefote  already  provided  in  a  general  way  for  this  situa- 
tion. It  was  more  definitely  stated  by  an  amendment  from  Mr.  Renault,  in 
the  following  words: 

The  jurisdiction  of  the  Permanent  Court  may  be  extended  to  disputes 
between  non-signatory  Powers,  or  between  signatory  Powers  and  non- 
signatory  Powers,  if  the  parties  are  agreed  to  have  recourse  to  this  tribunal. 

Mr.  Renault  believed  it  would  be  proper  to  leave  to  the  Permanent  Council 
complete  freedom  to  establish  a  schedule  of  costs  if  it  deemed  it  proper  in  this 
connection.  His  Excellency  Count  Nigra  expressed  the  opinion  that  it  was  neces- 
sary to  leave  the  door  to  arbitration  as  wide  open  as  possible. 

Article  27 

The  signatory  Powers  consider  it  their  duty,  if  a  serious  dispute  threatens  to  break 
out  between  two  or  more  of  them,  to  remind  these  latter  that  the  Permanent  Court  is 
open  to  them. 

Consequently,  they  declare  that  the  fact  of  reminding  the  parties  at  variance  of  the 
provisions  of  the  present  Convention,  and  the  advice  given  to  them,  in  the  highest  interests 
of  peace,  to  have  recourse  to  the  Permanent  Court,  can  only  be  regarded  as  in  the  nature 
of  good  offices. 

This  provision  is  due  to  the  suggestion  of  the  French  delegation.  It  was 
received  with  marked  sympathy  by  all  the  members  of  the  committee. 

Obstacles  which  may  in  many  cases  work  against  recourse  to  arbitration  by 
two  Powers  between  whom  a  serious  dispute  has  arisen,  become  of  moment  in 
the  then  existing  state  of  public  opinion.  It  is  of  the  utmost  importance,  therefore, 
in  the  interest  of  peace,  to  smooth  the  way  for  such  recourse,  as  desirable  as  it 
is  difficult  in  some  cases. 

If  the  Conference  wishes  to  perform  a  work  productive  of  helpful  results, 
it  should  face  this  practical  side  of  the  peace  problem. 

Is  it  possible,  from  this  view-point,  to  invest  the  Bureau  at  The  Hague  with 
an  international  authority,  clearly  limited,  to  call  the  attention  of  Powers  which 
find  themselves  at  any  time  in  sharp  conflict,  to  the  provisions  of  the  present 
Convention,  and  to  the  ever-open  door  of  the  Permanent  Court  ? 

Baron  d'Estournelles  de  Constant  urged  especially  the  idea  that  there  is 
more  than  a  right  to  be  exercised :  there  is  a  duty  to  be  fulfilled,  the  accomplish- 


136  PLENARY  CONFERENCE 

ment  of  which  duty  can  alone  give  to  the  act  of  the  Hague  Conference  its  full 
moral  value  and  efficacy.  He  therefore  proposed  to  the  committee  the  adoption  of 
the  following  provision: 

The  signatory  Powers,  considering  it  a  duty,  in  case  a  sharp  dispute 
threatens  to  break  out  between  two  or  more  of  them,  to  call  the  attention 
of  the  disputants  to  the  fact  that  the  Permanent  Court  is  open  to  them, 
hereby  authorize  the  secretary  general  of  the  Bureau,  when  occasion  arises, 
to  place  himself  at  the  service  of  each  of  the  interested  parties,  by  writing  to 
their  representatives  in  the  Netherlands. 

The  exercise  of  this  authority  shall  not  be  considered  an  unfriendly  act. 

This  proposition  had  the  advantage  of  creating  an  organization  acting  to 
some  extent  by  itself  and  whose  modest  but  certain  duty  appeared  to  be  of 
a  nature  to  produce  the  desired  result,  without  offending  the  States  in  con- 
troversy. 

From  other  standpoints  it  presented  such  difficulties  that  the  committee,  not 
without  regret,  was  obliged  to  renounce  it. 

The  idea  of  confiding  international  authority,  in  this  matter,  to  the  Powers 
which  are  "  neutral  in  principle  "  also  gave  rise  to  serious  objections. 

In  calling  attention  to  the  reasons  which  might  recommend  the  proposal  of 
Baron  d'Estournelles  de  Constant,  President  Leon  Bourgeois  had  called 
attention  to  the  possibility  of  attaining  the  same  end  by  another  means :  applying, 
in  these  special  circumstances,  the  right  to  offer  good  offices,  guaranteed  by 
Article  3  of  the  present  Convention.  He  urged  especially  the  importance  of 
[96]  considering  this  act  as  a  duty. 

This  proposition  was  a  new  development  of  the  principle  formulated  at  the 
beginning  for  the  work  of  the  committee  by  his  Excellency  Count  Nigra,  a 
principle  which  was  to  be  extended  not  only  to  mediation  but  to  arbitration,  in 
the  draft  of  the  first  delegate  from  Italy. 

The  committee,  in  spite  of  certain  fears  expressed  at  first,  unanimously 
supported  the  proposition  made  to  it,  and  this  proposition  found  expression  in 
Article  27.  The  committee  thought  that,  in  view  of  the  important  end"  to  be 
attained,  it  was  necessary  to  make  a  brave  attempt  in  the  direction  where  there 
is  a  noble  and  useful  role  to  be  played  in  direct  relation  to  the  work  carried  on 
by  all  the  Powers  at  the  Hague  Conference. 

The  discussion  about  Article  27  in  the  Commission  gave  rise  to  a  debate 
exhibiting  peculiar  breadth  of  view  and  notably  high  ideals. 

Mr.  Beldiman  and  Mr.  Veljkovitch  proposed  to  substitute  for  "  the 
Powers  consider  it  their  duty  "  this  expression :  "  the  Powers  believe  it  desir- 
able." 

Mr.  Beldiman  presented  this  amendment  because  it  was  involved  in  the 
principle  of  voluntary  arbitration  adopted  by  his  Government. 

Mr.  Veljkovitch,  while  stating  that  his  Government  sympathized  with  the 
principle  of  obligatory  arbitration,  represented  that  the  new  provision  was  useless 
in  view  of  Articles  1  and  3,  as  it  touched  upon  such  delicate  questions  that  they 
should  form  the  subject  of  reservations,  since  they  applied  unequally  to  the  large 
and  small  Powers. 

Baron  d'Estournelles  de  Constant  recalled  the  necessity  of  stating  the  fact 
that  States  have  not  only  rights  but  duties  in  this  connection. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  137 

His  Excellency  Count  Nigra  stated  that  the  Conference  is  composed  of 
representatives  of  States  absolutely  equal  among  themselves,  who  are  inde- 
pendently entering  into  discussion  and  who  have  come  together  with  the  sole 
idea  of  performing  a  useful  work  for  peace. 

Dr.  ZoRN,  after  having  summarized  the  reasons  for  his  Government's  deci- 
sion not  to  support  the  propositions  concerning  obligatory  arbitration,  declared 
that  Germany  wished  to  do  all  it  could  for  peace,  and  that,  with  that  idea,  she 
had  no  objection  to  Article  27. 

Mr.  Odier  observed  that  new  duties  arise  in  a  new  era  and  that  the  neutral 
nations  of  our  day  should  be,  to  adopt  a  new  word:  "managers  of  peace" 
(pacigcrants) . 

Mr.  HoLLS  set  forth  in  his  turn  the  importance  of  the  assertion  of  the 
existence  of  a  moral  duty  on  the  part  of  the  States  as  a  corollary  of  the  joint  and 
several  liability  which  unites  peoples. 

Mr.  Stancioff  believed  that,  if  we  admit  that  it  is  a  duty  to  call  attention 
to  the  existence  of  the  Permanent  Court — and  that  would  always  be  a  benefit — 
it  is  important  also  to  indicate  the  manner  in  which  this  duty  is  to  be  performed. 

In  setting  forth  definitely  the  scope  of  Article  27,  President  Leon  Bourgeois 
stated  that,  "  the  disputes  contemplated  by  Article  27  are  those  which  menace 
peace."  "  As  for  the  fear  expressed  by  the  delegate  from  Serbia  that  a  strong 
Power  will  make  use  of  Article  27  to  attempt  objectionable  intervention  into 
the  affairs  of  a  weaker  Power,  I  simply  maintain,"  said  the  president,  "  that,  if 
a  Power  should  act  in  that  manner,  far  from  possessing  the  spirit  of  Article 
27,  that  Power  would,  it  seems  to  me,  act  absolutely  against  its  purpose  and 
against  its  spirit.  So  far  as  we  are  concerned,  if  this  article  could  produce  such 
a  consequence,  we  not  only  would  not  have  taken  the  initiative  with  regard 
thereto,  but,  if  it  had  been  presented  by  others,  we  would  have  energetically 
fought  against  it  and  refused  to  vote  for  it." 

Defining,  then,  the  practical  value  of  Article  27,  the  president  stated  "  that 
it  was  necessary  to  recall  in  considering  arbitration  the  principles  written  in 
the  first  article  of  the  Convention  whereby  the  signatory  Powers  agree  to  use 
every  effort  to  ensure  the  peaceful  settlement  of  international  disputes." 

The  first  application  of  these  principles  was  made  in  the  articles  concerning 
offers  of  good  offices  and  mediation. 

Article  27  is  a  new  application  of  these  same  principles. 

But  it  is  not  only  a  question  of  the  practical  usefulness  of  this  provision 
(the  president  added).  What  makes  us  determined  to  defend  it  so  energeti- 
cally is  that  it  appears  to  us  to  have  a  moral  usefulness  the  greatness  of  which 
will  be  better  comprehended  every  day  that  passes  after  the  conclusion  of 
our  labors. 

The  moral  value  of  Article  27  consists  entirely  in  the  fact  that  a  common 
duty  for  the  maintenance  of  peace  among  men  is  recognized  and  affirmed 
among  nations.  Do  you  believe  that  it  is  a  small  thing  to  have  proclaimed 
in  this  Conference — not  in  a  meeting  of  theorists  and  philosophers,  discussing 
with  freedom  and  upon  their  personal  responsibility  alone,  but  in  an  assembly 
where  the  Governments  of  nearly  all  civilized  nations  are  represented — the 

existence  of  this  international  duty,  and  to  have  declared  that  the  con- 
[97]  cept  of  this  duty,  henceforth  for  ever  introduced  into  the  conscience  of 

peoples,  is  in  the  future  to  be  impressed  upon  the  acts  of  governments 
and  nations? 


138  PLENARY  CONFERENCE 

International  Institutions  like  this  (said  the  president  in  conclusion)  will 
be  the  guaranty  of  the  weak  against  the  strong.  In  conflicts  in  strength  when 
it  is  a  question  of  lining  up  soldiers  of  flesh  and  steel,  there  are  the  great  and 
the  small,  the  weak  and  the  strong.  When  swords  are  thrown  into  the  two 
trays  of  the  balance,  one  may  be  heavier  and  the  other  lighter.  But,  when 
we  throw  in  ideas  and  rights,  the  inequality  ceases  and  the  rights  of  the 
smallest  and  the  weakest  weigh  equally  with  those  of  the  greatest. 

This  idea  has  dictated  our  work,  and  we  have  thought  especially  of  the 
weak  in  carrying  it  out. 

May  they  understand  our  idea  and  respond  to  our  hope  by  joining  in 
the  eflForts  made  to  regulate  more  and  more  the  future  of  humanity  by  law  1 

Following  these  words,  which  were  greeted  by  the  prolonged  applause 
of  the  assembly,  the  retention  of  Article  27  as  it  stood  was  unanimously  agreed 
upon. 

Article  28 

A  Permanent  Administrative  Council,  composed  of  the  diplomatic  representatives  of 
the  signatory  Powers  accredited  to  The  Hague  and  of  the  Netherland  Minister  for  Foreign 
Affairs,  who  will  act  as  president,  shall  be  instituted  in  this  town  as  soon  as  possible  after 
the  ratification  of  the  present  act  by  at  least  nine  Powers. 

This  Council  will  be  charged  with  the  establishment  and  organization  of  the  Interna- 
tional Bureau,  which  will  be  under  its  direction  and  control. 

It  will  notify  to  the  Powers  the  constitution  of  the  Court  and  will  provide  for  its 
installation. 

It  will  settle  its  rules  of  procedure  and  all  other  necessary  regulations. 

It  will  decide  all  questions  of  administration  which  may  arise  with  regard  to  the  opera- 
tions of  the  Court. 

It  will  have  entire  control  over  the  appointment,  suspension  or  dismissal  of  the  officials 
and  employees  of  the  Bureau. 

It  will  fix  the  payments  and  salaries,  and  control  the  general  expenditure. 

At  meetings  duly  summoned  the  presence  of  five  members  is  sufficient  to  render  valid 
the  discussions  of  the  Council.    The  decisions  are  taken  by  a  majority  of  votes. 

The  Council  communicates  to  the  signatory  Powers  without  delay  the  regulations 
adopted  by  it.  It  addresses  to  them  an  annual  report  on  the  labors  of  the  Court,  the  working 
of  the  administration,  and  the  expenditure. 

The  original  draft  provided  for  the  nomination  by  the  Government  of  the 
country  selected  as  the  seat  of  the  Court,  of  a  Permanent  Administrative  Council, 
composed  of  five  members  and  a  secretary,  with  the  duty  of  establishing  and 
organizing  the  International  Bureau  as  well  as  determining  questions  concerning 
the  operation  of  the  Court. 

During  the  debate  his  Excellency  Sir  Julian  Pauncefote  proposed  to  sub- 
stitute for  this  machinery,  the  advantages  of  which  were  being  discussed,  another 
permanent  Council  composed  of  the  diplomatic  representatives  of  the  signatory 
Powers  residing  at  The  Hague,  under  the  presidency  of  the  Minister  of  Foreign 
Affairs  of  the  Netherlands.  This  excellent  modification  received  general  en- 
dorsement. 

At  the  suggestion  of  Baron  Bildt  the  words  "  residing  at  The  Hague  "  were 
replaced  by  the  broader  expression  "  accredited  to  The  Hague."  It  is  always 
understood  that  non-resident  diplomats  shall  have  such  an  understanding  with 
the  Permanent  Council  that  all  communications — and  especially  notices  of  meet- 
ings— may  be  addressed  to  them  at  The  Hague. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  I39 

The  greater  part  of  the  original  organic  provisions  were  appHed  to  the 
new  Council.  To  it  was  also  confided  the  duty  of  notifying  the  Powers  of  the 
constitution  of  the  Court  and  of  providing  for  the  installation  of  the  latter. 

The  provisions  proposed  in  this  connection  can  only  further  increase  the 
high  dignity  of  the  Permanent  Court  of  Arbitration.  They  will  give  to  The 
Hague  special  authority  and  prestige. 

At  the  suggestion  of  his  Excellency  Count  Welsersheimb,  the  essentially 
administrative  character  of  the  Council  was  clearly  set  forth,  notably  with  regard 
to  its  powers  in  connection  with  the  operation  of  the  Court. 

The  Council  itself  will  bear  the  title  "  Permanent  Administrative  Council." 

Communication  to  the  Powers  of  the  rules  adopted  by  the  Council  has 
been  provided  for,  without  this  communication  resulting  in  subjecting  these  rules 
to  the  approval  of  each  Power. 

It  was  also  understood  that  the  Permanent  Council  should  be  formed  as 
soon  as  possible  after  the  ratification  of  the  present  act  by  nine  Powers  at  least. 

[98]  Article  29 

The  expenses  of  the  Bureau  shall  be  borne  by  the  signatory  Powers  in  the  proportion 
fixed  for  the  International  Bureau  of  the  Universal  Postal  Union. 

The  rules  for  the  division  of  expenses  agreed  to  by  all  the  States  in  con- 
nection with  the  International  Bureau  of  the  Universal  Postal  Union,  have 
been  considered  equitable  and  applied  several  times  since  then  in  similar  con- 
ventions. 

It  appeared  to  the  committee  that  the  best  solution  here  was  purely  and 
simply  to  adopt  these  rules,  the  application  of  which  causes  no  difficulty. 

Chapter  III. — Arbitration  procedure 

General  rules  of  law  accepted  by  agreement  among  the  States  do  not  at 
present  exist  with  regard  to  arbitration  procedure.  As  a  result  we  have  delays, 
uncertainty,  injurious  impediments  to  the  prompt  and  smooth  progress  of  cases 
submitted  to  arbitrators. 

Each  special  compromis  can,  doubtless,  provide  to  a  certain  extent  for  this 
lack,  and  the  history  of  international  arbitration  informs  us  of  numerous  pro- 
visions drawn  up,  in  fact,  with  this  end  in  view.  It  is  none  the  less  true  that  as 
the  number  of  cases  of  actual  recourse  to  arbitration  increases,  and  as  the  treaty 
stipulations  for  the  making  of  compromis  increase,  the  lack  of  common  funda- 
mental rules  concerning  the  procedure  to  be  followed  by  arbitrators  produces 
more  and  more  damaging  results. 

The  Institute  of  International  Law,  has  for  a  long  time,  led  the  way  in  this 
matter.  After  having  worked  out  a  draft  of  a  set  of  rules  of  arbitral  procedure 
at  Geneva  in  1874,  it  finally  adopted  this  draft  at  The  Hague,  April  28,  1875, 
making  the  following  note  as  the  preamble  thereof : 

The  Institute,  desiring  that  recourse  to  arbitration  for  the  settlement  of 
international  disputes  be  resorted  to  more  and  more  by  civilized  peoples,  hopes 
to  be  of  service  toward  the  realization  of  such  progress  by  proposing,  for 
arbitral  tribunals,  the  following  eventual  regulations.  It  recommends  them 
for  adoption,  in  whole  or  in  part,  to  States  that  may  conclude  compromis. 


140  PLENARY  CONFERENCE 

The  very  remarkable  work  of  the  Institute  has  since  been  completed  by 
others,  the  works  of  eminent  jurisconsults.  It  has  been  enriched  by  the  practice 
in  numerous  international  arbitrations  which  have  occurred  during  the  last 
quarter  of  a  century.  We  may  to-day,  drawing  from  the  double  source  of 
science  and  experience,  bring  together  a  collection  of  rules  relative  to  the  guidance 
and  decision  of  arbitral  matters,  which  seem  to  merit  general  approval. 

Such  rules  should  be  limited  to  fundamental  principles.  They  could  not 
be  too  detailed  without  being  a  hindrance  and  a  danger.  But  within  the  just 
limits  where  it  is  convenient  to  accept  them,  they  may  render  important  service 
to  the  arbitral  courts  often  called  upon  to  act  ex  tempore.  They  may  serve  as 
typical  rules  to  which  it  will  be  expedient  to  refer.  They  may  aid  in  filling  up 
the  gaps  in  the  compromis,  which  ordinarily  formulate  only  a  few  and  very  in- 
complete rules.  As  they  will  also,  under  all  circumstances,  always  retain  their 
character  as  auxiliary  rules,  the  wishes  of  the  litigating  parties  may  always  over- 
ride them,  modify  them,  or  do  away  with  them.  They  will  not  control  the  points 
which  they  cover  except  in  the  event  and  so  far  as  the  States  have  not  otherwise 
provided. 

In  the  development  of  these  rules,  the  committee  took  for  its  guide  the 
draft  of  the  arbitral  code  submitted  to  the  Conference  by  the  Russian  delega- 
tion. Revised  by  men  of  special  ability,  and  particularly  by  a  jurisconsult  in  whom 
we  all  recognize  an  embodiment  of  international  arbitration,  this  code  cannot 
fail  to  bear  the  seal  of  wise  experience.  The  provisions  therein  contained  closely 
approach,  in  many  regards,  the  rules  of  procedure  adopted  by  the  tribunal  at 
present  sitting  in  Paris  under  the  presidency  of  Mr.  Martens,  for  the  settlement 
of  the  disputes  between  Great  Britain  and  Venezuela. 

Article  30 

With  a  view  to  encouraging  the  development  of  arbitration,  the  signatory  Powers  have 
agreed  on  the  following  rules,  which  shall  be  applicable  to  arbitration  procedure  unless  other 
rules  have  been  agreed  on  by  the  parties. 

This  article  corresponds  to  Article   13  of  the  Russian  draft.     This  last 
[99]   provision  dealt  with  arbitral  procedure  with  a  view  of  setting  forth  the 
double  character  of  the  rules  proposed  in  this  connection : 
Auxiliary  rules  of  such  a  character  as  to  facilitate  recourse  to  arbitration 
and  its  application. 

Also  rules  of  an  optional  character,  that  is,  rules  that  may  always  be  modified 
by  common  agreement  between  the  parties  in  litigation. 

Article  19  attributes  these  same  characteristics  to  the  fundamental  rules 
of  arbitration  procedure  which  form  Chapter  III  of  the  present  Convention. 

Article  31 

The  Powers  which  have  recourse  to  arbitration  sign  a  special  act  (compromis),  in 
which  are  clearly  defined  the  subject  of  the  dispute  and  the  extent  of  the  arbitrators' 
powers.  This  act  implies  an  engagement  of  the  parties  to  submit  in  good  faith  to  the 
arbitral  award. 

The  convention  for  international  arbitration  is  an  agreement  between  States 
for  a  judicial  settlement  of  existing  or  possible  international  disputes  by  judges 
of  their  choice. 


SEVENTH  MEETING,  JULY  25,  1899 :  ANNEXES  141 

This  convention  implies  an  adequate  determination,  on  the  one  hand,  of 
disputes  susceptible  of  arbitration,  and,  on  the  other  hand,  of  the  tribunal  called 
upon  to  pass  upon  these  disputes. 

Disputes  to  arise  in  the  future  are  adequately  specified  by  a  statement  of 
their  character. 

The  arbitral  tribunal  is  sufficiently  described  by  an  indication  of  the  process 
according  to  which  it  is  to  be  formed. 

The  parties  which  conclude  an  arbitral  convention  for  future  disputes^  may 
retain  the  right  to  set  forth  exactly,  by  a  special  and  further  convention  in  each 
case  of  actual  recourse  to  arbitration,  the  points  upon  which  the  dispute  bears, 
as  well  as  the  authority  conferred  upon  the  arbitrators. 

They  may  also  reserve  the  right  to  make  the  final  arrangements  necessary 
to  nominate  the  arbitrators. 

When  parties  conclude  a  compromis  properly  speaking,  in  other  words,  when 
they  agree  to  settle  an  existing  dispute  by  arbitration,  they  have  the  right  to  set 
forth  exactly  in  their  agreement  the  points  referred  to  the  judgment  of  the 
arbitrators  and  the  constitution  of,  or  the  method  of  forming,  the  tribunal  called 
upon  to  act. 

The  first  general  rules  of  procedure,  the  adoption  of  which  is  proposed 
to  the  States,  contains  in  two  separate  articles  these  two  elements  of  the  com- 
promis. 

To  describe  the  first  point  which  the  compromis  should  set  forth  in  exact 
terms  in  order  not  to  run  the  risk  of  being  without  any  real  foundation.  Article 
2  of  the  draft  for  the  arbitral  code  used  the  following  terms :  "  questions  sub- 
mitted to  the  decision  of  the  arbitrators  and  all  of  the  facts  and  points  of  law- 
involved  therein." 

The  last  part  of  this  phrase  was  criticized  by  Mr.  Asser.  We  cannot,  for 
instance,  demand  that  the  compromis  should  specify  "  all  of  the  facts  which  are 
involved  in  the  question  submitted  to  the  decision  of  the  arbitrators."  It  seems, 
in  fact,  that  it  would  have  been  preferable  to  say  "  the  points  of  law  and  fact 
submitted  to  the  decision  of  the  arbitrators."  The  committee  believed  it  could 
use  the  following  words  as  a  still  more  satisfactory  formula:  "the  subject  of 
the  dispute  and  the  extent  of  the  powers  conferred  upon  the  arbitrators." 

It  thus  approached  the  provisions  contained  in  Article  2  of  the  general  treaty 
of  arbitration  between  Italy  and  Argentine,  July  23,  1898. 

The  second  part  of  Article  31,  declaring  that  "  in  the  compromis  is  to  be 
found  a  confirmation  of  the  engagement  of  the  parties  to  submit  in  good  faith 
to  the  arbitral  award,"  appeared  to  be  difficult  to  explain  in  view  of  Articles  17 
and  18  of  the  draft,  where  it  is  said  that  the  arbitral  convention,  concluded 
to  cover  existing  disputes,  implies  this  same  obligation. 

The  committee  believed  there  was  reason  for  adopting  in  Article  31  the 
same  terms  as  in  Article  18.  It  accepted,  therefore,  the  following  revision: 
"  This  act  implies  an  engagement  of  the  parties  to  submit  in  good  faith  to  the 
arbitral  award." 

Article  32 

The  duties  of  arbitrator  may  be  conferred  on  one  arbitrator  alone  or  on  several  arbi- 
trators selected  by  the  parties  as  they  please,  or  chosen  by  them  from  the  members  of  the 
Permanent  Court  of  Arbitration  established  by  the  present  act. 


142  PLENARY  CONFERENCE 

Failing  the  composition  of  the  tribunal  by  direct  agreement  of  the  parties,  the  following 
course  is  pursued: 

Each  party  appoints  two  arbitrators,  and  these  together  choose  an  umpire. 

If  the  votes  are  equally  divided,  the  choice  of  the  umpire  is  entrusted  to  a  third  Power, 
selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects  a  different  Power, 
and  the  choice  of  the  umpire  is  made  in  concert  by  the  Powers  thus  selected. 

[100]  Article  32  is  of  considerable  importance  because  it  attempts  above  all 
to  determine  the  best  method  of  forming  the  arbitral  tribunal,  when 
the  latter  is  composed  of  several  arbitrators  and  is  not  fully  constituted  at  the 
beginning. 

The  choice  of  arbitrators  belongs  in  the  first  place  to  the  interested  Powers. 

The  designation  of  a  single  arbitrator,  if  the  affair  is  important,  is  of  excep- 
tional seriousness :  it  is  proper,  in  short,  to  observe  that  the  award  to  be  rendered 
cannot,  according  to  the  existing  practice,  be  subject  to  appeal. 

When  the  parties  prefer  a  number  of  arbitrators  to  a  single  arbitrator  they 
may  agree  upon  the  complete  organization  of  the  tribunal  at  the  start.  This 
procedure  prevents  all  further  difficulty.  But,  in  default  of  the  formation  of 
the  tribunal  by  direct  agreement  of  the  parties,  there  is  need  to  determine  a 
normal  method  for  forming  the  arbitral  tribunal.  Article  32  provides  for  this 
exigency.  The  rules  adopted  in  this  article  are  similar  to  those  which  we  have 
indicated  in  Article  24.    We  have  already  set  forth  the  theory  thereof. 

Article  33 
When  a  sovereign  or  the  chief  of  a  State  is  chosen  as  arbitrator,  the  arbitration  pro- 
cedure is  settled  by  him. 

When  the  arbitrator  chosen  is  the  head  of  a  State,  it  would  not,  for  reasons 
of  the  highest  expediency,  be  suitable  to  permit  any  provision  for  procedure 
other  than  that  set  up  by  his  supreme  will.  This  principle  is  sanctioned  in 
Article  33. 

Article  34 

The  umpire  is  ex  oMcio  president  of  the  tribunal. 

When  the  tribunal  does  not  include  an  umpire,  it  appoints  its  own  president. 

It  seemed  necessary  to  settle  finally  and  in  a  separate  provision  the  question 
of  who  should  act  as  president. 

When  there  is  an  umpire  in  the  tribunal  it  is  proper  to  reserve  the  presidency 
for  him,  de  jure. 

In  the  contrary  case,  it  is  convenient  to  allow  the  tribunal  itself  to  make 
its  choice. 

Article  34  sanctions  this  double  rule. 

With  regard  to  this  article  Mr.  Papiniu,  delegate  from  Roumania,  called 
the  attention  of  the  Commission  to  the  difficulties  which  might  arise  from  the 
formation  of  a  tribunal  consisting  of  an  equal  number  of  arbitrators,  or  from 
circumstances  which  might  accidentally  bring  about  this  situation,  at  the  moment 
of  rendering  the  decision. 

The  Commission  recognized  the  importance  to  be  attached  to  the  organiza- 
tion of  tribunals  composed  of  an  unequal  number  of  arbitrators,  as  is  provided 
elsewhere  in  the  general  system  adopted  by  the  present  Convention. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  143 

Article  35 

In  case  of  the  death,  retirement,  or  disability  from  any  cause  of  one  of  the  arbitrators, 
his  place  is  filled  in  the  same  way  as  he  was  appointed. 

The  question  of  the  effect  to  be  given  to  the  decease,  retirement,  or  dis- 
ability of  an  arbitrator,  for  any  special  reason,  was  vigorously  discussed  in  the 
committee. 

The  Russian  draft  declared  the  entire  compromis  invalid  in  such  a  case, 
unless  a  contrary  stipulation  was  provided  in  advance  by  the  parties. 

In  support  of  this  view  the  argument  was  made  that  the  designation  of  the 
arbitrators  is  intimately  associated  with  a  feeling  of  personal  confidence.  The 
legal  argument  was  relied  upon  that  as  soon  as  the  representative  disappeared 
the  authority  conferred  upon  him  no  longer  existed.  It  was  alleged  to  be  neces- 
sary to  ensure  the  strongest  guaranties  to  States  which  adopted  arbitration. 

According  to  another  opinion,  it  would  at  least  be  convenient  to  put  in  force 
the  rule  proposed  by  the  Russian  delegation  in  case  of  death,  retirement,  or  dis- 
ability of  the  umpire,  because  of  the  peculiarly  important  role  of  the  latter  in  the 
operation  of  arbitral  courts. 

These  considerations  did  not  prevail. 

The  importance  of  ensuring  the  existence  of  the  compromis  and  its  results, 
by  protecting  it  as  much  as  possible  from  the  extreme  consequences  of  unfore- 
seen circumstances,  was  set  forth.     When  two  Governments  have  agreed 
[101]  upon  arbitration,  there  is  great  interest  in  preventing  any  chance  occur- 
rence from  destroying  the  fruit  of  their  labors. 

On  the  other  hand,  it  was  observed  that  in  requiring  a  provision  for  replacing 
the  umpire  according  to  the  method  chosen  for  his  election,  the  guaranties 
originally  established  would  in  fact  be  preserved. 

The  view  based  upon  these  latter  arguments  was  finally  adopted  by  the  com- 
mittee as  sanctioning  a  rule  favorable  to  the  maintenance  of  arbitration.     The 
parties  retain  entire  freedom  to  provide,  if  they  prefer,  for  the  possible  nullifica 
tion  of  the  compromis. 

Article  36 

The  tribunal's  place  of  session  is  selected  by  the  parties.  FaiUng  this  selection,  the 
tribunal  sits  at  The  Hague. 

The  place  thus  fixed  cannot,  except  in  case  of  necessity,  be  altered  by  the  tribunal 
without  the  assent  of  the  parties. 

The  question  of  the  meeting-place  of  the  tribunal  may  be  of  great  importance 
to  the  parties  in  litigation  from  various  view-points.  It  is  important  especially  to 
leave  the  choice  in  this  matter  to  them. 

Furthermore,  it  is  not  to  be  presumed  that  they  would  consent  to  divest 
themselves  completely  of  all  interest  in  a  change  of  the  place  of  meeting. 

That  is  the  reason  why  Article  36  provides  that  in  this  also  their  joint  assent 
is  necessary,  except  in  case  of  force  tnajeure. 

If  no  provision  is  made  by  the  parties,  the  seat  of  the  Permanent  Court  of 
Arbitration  seems  naturally  to  receive  preference. 

Article  36  translates  into  law  these  practical  observations. 

Let  us  note  that,  with  regard  to  the  Permanent  Court,  Article  25  fixes  The 
Hague  as  the  customary  seat  and  first  in  order. 


144  PLENARY  CONFERENCE 

Article  37 

The  parties  are  entitled  to  appoint  delegates  or  special  agents  to  attend  the  tribunal 
to  act  as  intermediaries  between  themselves  and  the  tribunal. 

They  are  further  authorized  to  commit  the  defense  of  their  rights  and  interests  before 
the  tribunal  to  counsel  or  advocates  appointed  by  them  for  this  purpose. 

The  delegates  or  special  agents  of  the  parties  play  an  important  role  in 
arbitral  procedure:  they  are  the  intermediaries  between  the  parties  and  the 
tribunal. 

Article  13  of  the  rules  of  the  Institute  of  International  Law  is  as  follows: 

Each  of  the  parties  may  appoint  one  or  more  representatives  before 
the  arbitral  tribunal. 

The  appointment  of  such  representatives  exists  everywhere  in  practice. 

Article  Z7  sanctions  it  by  making  a  distinction  between  these  principal  official 
agents  and  the  counselors  and  lawyers  who  are,  under  different  conditions,  also 
aids  to  arbitral  justice. 

Mr.  Seth  Low  called  attention  to  the  inconsistencies  in  exercising  the 
functions  of  a  member  of  the  Permanent  Court  and  those  of  special  agent  or 
lawyer  before  this  Court.  The  committee,  to  which  the  examination  of  this 
question  was  referred,  expressed  the  opinion  that  no  member  of  the  Court  can, 
during  the  exercise  of  his  functions  as  a  member  of  an  arbitral  tribunal,  accept 
a  designation  as  special  agent  or  attorney  before  another  arbitral  tribunal.  The 
committee  did  not  feel  itself  in  a  position  to  go  farther  in  the  matter  of  incon- 
sistencies applicable  to  all  States. 

At  the  request  of  Mr.  Asser  it  was  stated  that  the  expression  "  arbitral 
tribunal  "  did  not  designate  any  tribunal  except  one  formed  from  the  Perma- 
nent Court  of  Arbitration. 

His  Excellency  Sir  Julian  Pauncefote,  Mr.  Lammasch,  and  Mr.  Holls 
were  of  the  opinion  that  it  was  important  to  establish  the  duties  of  a  member  of 
the  Permanent  Court  of  Arbitration  as  generally  inconsistent  with  those  of  special 
agent  or  attorney  before  this  Court,  making  an  exception  only  in  the  case  where 
a  member  of  the  Court  might  represent  as  attorney  or  special  agent  the  country 
which  appointed  him  to  the  Court. 

Article  38 

The  tribunal  decides  on  the  choice  of  languages  to  be  used  by  itself,  and  to  be 
authorized  for  use  before  it. 

It  may  be  indispensable,  to  avoid  multifarious  difficulties,  and  in  certain  cases 
to  make  it  possible  for  the  arbitrators  to  perform  their  duties,  to  decide  the  ques- 
tion of  the  language  which  will  be  authorized  before  the  arbitral  tribunal. 
[102]   It  should  be  within  the  province  of  the  tribunal  to  decide  in  this  matter 
upon    what   measures    it    believes    necessary:    that    is    what   Article    38 
formally  decides. 

An  amendment  proposed  by  the  first  delegate  from  Italy  completed  the 
provision  originally  voted  by  the  committee  by  authorizing  the  tribunal  to  decide 
upon  which  language  it  will  use  itself,  especially  in  the  decision  to  be  rendered. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  145 

Article  39 

As  a  general  rule  arbitration  procedure  comprises  two  distinct  phases :  pleadings  and 
oral  discussions. 

The  pleadings  consist  in  the  communication  by  the  respective  agents  to  the  members 
of  the  tribunal  and  the  opposite  party  of  all  printed  or  written  acts  and  of  all  documents 
containing  the  grounds  relied  on  in  the  case.  This  communication  shall  be  made  in  the  form 
and  within  the  time  fixed  by  the  tribunal  in  accordance  with  Article  49. 

The  discussions  consist  in  the  oral  development  before  the  tribunal  of  the  arguments 
of  the  parties. 

Procedure  prior  to  the  award  generally  covers  two  periods,  which  it  is 
desirable  to  distinguish :  pleadings  and  oral  discussions. 

The  first  is  always  indispensable;  the  second  is  ordinarily  a  necessary  com- 
plement of  the  first. 

Important  consequences  are  attached  to  the  close  of  the  pleadings. 

The  Russian  draft  designated  these  two  periods  of  arbitral  procedure  as 
follows :  "  preliminary  phase  and  final  phase." 

Article  40 
Every  document  produced  by  one  party  must  be  communicated  to  the  other  party. 

The  committee  believed  it  important  to  sanction  positively  in  a  separate 
article  this  rule  of  judicial  procedure :  "  Every  document  produced  by  one  party 
must  be  communicated  to  the  other  party." 

This  is  a  guaranty  of  prime  importance,  the  sanction  of  which  finds  its  nat- 
ural place  in  the  general  code  of  arbitral  procedure. 

Article  41 

The  discussions  are  under  the  direction  of  the  president. 

They  are  only  public  if  it  be  so  decided  by  the  tribunal,  with  the  assent  of  the  parties. 
They  are   recorded   in  the  minutes   drawn   up  by  the   secretaries   appointed   by   the 
president.    These  minutes  alone  have  an  authentic  character. 

Article  41,  after  having  given  the  control  of  the  discussions  to  the  president, 
deals  with  the  possible  publicity  of  the  discussions  and  with  their  record  in 
minutes  of  an  authentic  character. 

So  far  as  the  first  point  is  concerned,  it  did  not  seem  possible  to  formulate 
as  a  rule  the  principle  of  publicity.  Publicity,  however,  is  not  forbidden.  It  is 
conditioned  upon  two  things :  a  decision  by  the  tribunal  upon  this  point  and  the 
consent  of  the  parties.  If  accepted  within  these  limits,  publicity  does  not  present 
any  of  the  difficulties  which  the  application  of  a  broader  measure  might  offer  in 
international  arbitral  procedure. 

Regarding  the  second  point,  practice  has  shown  the  necessity  of  giving  an 
authentic  character  only  to  the  minutes  drawn  up  by  the  secretaries  named  by  the 
president  of  the  tribunal. 

Article  42 

After  the  close  of  the  pleadings,  the  tribunal  is  entitled  to  refuse  discussion  of  all 
new  papers  or  documents  which  one  of  the  parties  may  wish  to  submit  to  it  without  the 
consent  of  the  other  party. 


146  PLENARY  CONFERENCE 

The  fairness  of  the  discussions,  no  less  than  the  general  demands  of  judicial 
procedure,  requires  that  after  the  close  of  the  pleadings,  the  tribunal  shall  have, 
to  a  certain  extent,  the  power  to  refuse  to  consider  papers  and  documents  pre- 
sented late. 

The  committee,  however,  considered  the  rule  contained  in  Article  12  of  the 
Russian  draft  as  too  rigid.  It  was  thought  that  the  authority  of  the  tribunal 
ought  not  to  be  permitted  to  be  exercised  except  with  regard  to  new  papers  and 
documents  which  the  representatives  of  one  of  the  parties  wished  to  submit  to 
the  tribunal  without  the  consent  of  the  other  party.  It  did  not  appear  desirable 
for  the  tribunal  to  be  able  to  sacrifice  one  means  of  arriving  at  the  truth,  honestly 
agreed  to  by  the  adverse  party.  Even  within  the  limits  where  the  power  of  the 
tribunal  is  recognized,  foreclosure  seems  to  be  a  grave  measure  which  should  not 
be  followed  except  with  a  full  appreciation  thereof. 

[103]  Article  43 

The  tribunal  is  free  to  take  into  consideration  new  papers  or  documents  to  which  its 
attention  may  be  drawn  by  the  agents  or  counsel  of  the  parties. 

In  this  case,  the  tribunal  has  the  right  to  require  the  production  of  these  papers  or 
documents,  but  is  obliged  to  make  them  known  to  the  opposite  party. 

The  freedom  of  the  tribunal  to  take  into  consideration  the  papers  and  docu- 
ments of  which  use  has  been  made  by  the  agents  or  counsel  of  the  parties  in 
litigation  during  their  arguments  before  the  arbitral  tribunal,  should  of  course 
remain  unimpaired. 

The  right  of  the  tribunal  to  require  the  production  of  these  papers  and 
documents  appears  equally  incontestable. 

The  Russian  draft  recognized  simply  the  right  of  the  tribunal  to  give  notice 
of  these  documents  to  the  adverse  party.  The  committee  believed  that  it  was 
not  an  optional  right  which  must  be  sanctioned  in  this  case,  but  an  obligation. 

The  text  of  the  Russian  draft  was  modified  to  this  end. 

Article  44 
The  tribunal  can,  besides,  require  from  the  agents  of  the  parties  the  production  of  all 
papers,  and  can  demand  all  necessary  explanations.    In  case  of  refusal,  the  tribunal  takes 
note  of  it. 

Among  the  powers  recognized  as  appertaining  to  the  Arbitral  Court,  to  enable 
it  to  discover  the  truth,  the  Russian  draft  admitted  the  right  of  the  tribunal  "  to 
require  the  agents  of  the  parties  to  present  all  papers  or  explanations  which  it 
needs." 

The  committee  thought  that  the  sanction  of  this  power,  without  reservation, 
was  not  desirable,  and  that  there  might  be  cases  where  refusal  would  be  justified. 
The  tribunal  is  to  take  note  of  such  refusals,  but  it  should  not  go  beyond  that. 

This  necessary  reservation  is  clearly  indicated  in  Article  44. 

Article  45 
The  agents  and  counsel  of  the  parties  are  authorized  to  present  orally  to  the  tribunal 
all  the  arguments  they  may  consider  expedient  in  defense  of  their  case. 

Article  45  cannot  give  rise  to  any  difficulty ;  it  sanctions  the  possible  rights 
of  the  defense  in  open  discussion  before  the  Arbitral  Court.  It  is  a  reproduction 
of  the  provision  contained  in  the  Russian  draft,  in  almost  the  same  terms. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  147 

Article  46 

They  are  entitled  to  raise  objections  and  points.  The  decisions  of  the  tribunal  on 
these  points  are  final,  and  cannot  form  the  subject  of  any  subsequent  discussion. 

Article  46  reproduces  again,  except  for  a  more  accurate  revision,  a  provision 
borrowed  from  the  Russian  draft. 

It  deals  with  exceptions  and  points  of  procedure  which  may  be  raised  before 
the  international  arbitral  tribunal,  in  the  same  way  as  before  national  tribunals. 

The  rights  of  the  parties  in  litigation  should  be  safeguarded  in  this  matter, 
but  it  is  important  on  the  other  hand  that  the  decisions  of  the  Arbitral  Court  upon 
such  points  should  settle  the  difficulties  finally. 

Article  46  satisfies  this  double  requirement. 

Article  47 

The  members  of  the  tribunal  are  entitled  to  put  questions  to  the  agents  and  counsel  of 
the  parties,  and  to  ask  them  for  explanations  on  doubtful  points. 

Neither  the  questions  put  nor  the  remarks  made  by  members  of  the  tribunal  in  the 
course  of  the  discussions  can  be  regarded  as  an  expression  of  opinion  by  the  tribunal  in 
general,  or  by  its  members  in  particular. 

Article  47  contains  a  provision  so  natural  that  it  seems,  at  first  sight,  almost 
unnecessary.  It  presents,  however,  a  practical  point  which  was  very  well  brought 
out  in  the  committee  by  Mr.  Martens. 

In  order  that  the  right  of  investigation  and  control  possessed  by  the  members 
of  the  tribunal  may  be  effectively  exercised,  the  arbitrators  must  be  protected  in 
the  questions  which  they  think  necessary  to  ask  and  the  observations  which  they 
believe  they  should  make,  from  interpretations  which  one  may  be  led  too  easily 
to  attach  to  attempts  to  seek  information  which  may  be  indispensable  to 
[104]  the  discovery  of  the  truth. 

From  this  point  of  view  it  is  very  expedient  after  having  recognized 
their  right,  to  declare  expressly  that  neither  the  questions  asked  nor  the  obser- 
vations made  by  the  members  of  the  tribunal  in  the  course  of  the  discussions  can 
be  regarded  as  an  expression  of  the  opinion  of  the  tribunal  in  general,  or  of  its 
members  in  particular. 

Such  is  the  purpose  and  the  reason  for  Article  47. 

Article  48 

The  tribunal  is  authorized  to  declare  its  competence  in  interpreting  the  compromis  as 
well  as  the  other  treaties  which  may  be  invoked  in  the  case,  and  in  applying  the  principles 
of  international  law. 

The  right  of  the  tribunal  to  determine  the  scope  of  its  powers  by  the  inter- 
pretation of  the  compromis  and  of  the  other  treaties  which  may  be  invoked  in  the 
proceeding,  and  by  the  application  of  principles  of  international  law  must  be 
recognized.  Not  to  accept  this  view  would  be  to  place  the  tribunal  in  the  condition 
of  a  court  incapable  of  acting,  and  obliged  to  divest  itself  of  jurisdiction  of  the 
controversy  every  time  that  it  might  please  one  of  the  parties  to  maintain,  even 
against  the  evidence,  that  the  tribunal  could  not  take  cognizance  of  such  a  question. 

The  more  arbitration  assumes  the  character  of  an  institution  of  international 
common  law,  the  more  the  power  of  the  arbitrators  to  decide  upon  this  matter 


148  PLENARY  CONFERENCE 

appears  to  be  of  the  very  essence  of  the  arbitral  function  and  one  of  the  inherent 
requirements  for  the  exercise  of  this  function. 

The  parties  may,  of  course,  Hmit  as  they  may  agree  the  extent  of  the  powers 
of  the  arbitrators ;  they  may  submit  the  exercise  of  this  power  to  such  reservations 
as  they  deem  necessary  or  opportune.  They  may,  if  they  choose,  formulate  the 
principles  which  the  arbitrators  shall  follow  to  guide  them  in  their  decision.  But 
it  does  not  seem  possible  to  refuse  the  arbitrators  the  power  of  deciding  in  case  of 
doubt  whether  the  points  are  within  or  without  their  jurisdiction. 

Such  is  the  principle  sanctioned  by  Article  48. 

The  reporter  asked  that  Article  48  be  completed  by  a  provision  setting  forth 
the  rules  according  to  which  the  arbitrators  should  give  judgment.  This  point 
was  considered,  properly  speaking,  as  not  coming  within  the  field  of  arbitral 
procedure. 

Article  49 

The  tribunal  is  entitled  to  issue  rules  of  procedure  for  the  conduct  of  the  case,  to 
decide  the  forms  and  time  in  which  each  party  must  conclude  its  arguments,  and  to  arrange 
all  the  formalities  required  for  dealing  with  the  evidence. 

The  principal  provisions  contained  in  Article  19  of  the  Russian  draft  and 
contained  in  Article  49  of  the  committee's  draft  are  borrowed  from  Article  15 
of  the  rules  of  the  Institute  of  International  Law. 

They  concern  the  right  to  issue  rules  of  procedure  for  the  conduct  of  the 
case,  and  to  decide  the  forms  and  time  in  which  each  party  must  present  its 
conclusions. 

It  seems  useless  to  set  forth,  as  did  Article  19  of  the  Russian  draft,  "  the  right 
to  pass  upon  the  interpretation  of  the  documents  produced  and  communicated  to 
the  two  parties." 

But  it  was  not  thought  unimportant  to  insist  upon  the  right  to  arrange  all  the 
formalities  required  for  dealing  with  the  evidence.  Upon  this  vital  point  it  is 
important  to  invest  the  arbitrators  with  the  most  extended  powers. 

Article  50 
When  the  agents  and  counsel  of  the  parties  have  submitted  all  the  explanations  and 
evidence  in  support  of  their  case,  the  president  pronounces  the  discussion  closed. 

Article  50  concerns  the  closing  of  the  discussions  and  cannot  cause  any 
difficulty.  It  is  a  reproduction  in  almost  its  exact  words  of  a  provision  contained 
in  the  Russian  draft. 

Article  51 
The  deliberations  of  the  tribunal  take  place  in  private.    Every  decision  is  taken  by  a 
majority  of  members  of  the  tribunal. 

The  refusal  of  a  member  to  vote  must  be  recorded  in  the  minutes. 

Article  51  deals  with  the  deliberations,  which  take  place  in  secret.     According 
to  this  article,  each  decision  shall  be  reached  by  a  majority  vote  of  the 
[105]  members  of  the  tribunal. 

The  Russian  draft  required  only  a  majority  of  the  members  present,  which 
seemed  an  insufficient  guaranty. 

Any  refusal  on  the  part  of  a  member  to  take  part  in  the  vote  should  be  stated 
in  the  minutes. 


SEVENTH  MEETING,  JULY  25,  1899 :  ANNEXES  149 

Article  52 

The  award,  given  by  a  majority  of  votes^  must  state  the  reasons  on  which  it  is  based. 
It  is  drav/n  up  in  writing  and  signed  by  each  member  of  the  tribunal. 

Those  members  who  are  in  the  minority  may  record  their  dissent  when  signing. 

The  Russian  draft,  in  providing  regulations  on  various  points  concerning  the 
decision,  did  not  speak  of  the  obHgation  of  the  arbitrators  to  give  the  reasons  for 
their  award.  This  omission  arises  from  considerations  of  a  practical  nature.  The 
obligation  to  give  the  reasons  for  the  award  may  be  a  delicate  matter  to  accom- 
plish and  particularly  difficult  for  the  arbitrators  belonging  to  the  country  against 
which  the  decision  is  rendered. 

While  recognizing  the  value  of  this  remark,  the  committee,  at  the  suggestion 
of  Dr.  ZoRN,  and  after  mature  deliberation,  declared  in  favor  of  the  insertion  of 
Article  52  of  the  obligation  to  set  forth  the  reasons  for  the  arbitral  decision.  That 
is  a  fundamental  guaranty  which  cannot  be  renounced.  There  is  scarcely  an 
example  of  an  arbitral  award  without  the  reasons  therefor.  The  duty  to  state 
the  reasons  may,  furthermore,  be  exercised  in  varying  degrees,  thereby  permitting 
the  difficulties  mentioned  to  be  avoided  without  evading  the  obligation. 

The  obligation  to  set  forth  the  reasons  for  the  award,  which  was  discussed 
in  the  Commission  again,  was  finally  adopted,  at  the  same  time  noting  the  state- 
ment that  the  form  and  scope  of  this  duty  are  practically  of  wide  extent. 

Mr.  RoLiN  expressed  the  view  that  arbitrators  should  be  required  to  set  forth 
the  reasons  for  possible  votes  contrary  to  the  opinion  of  the  majority.  But  it 
was  observed  that  this  would  expose  us  to  the  possibility  of  having  two  awards 
in  each  case  and  of  bringing  the  disagreement  of  the  arbitrators  before  the  public. 

His  Excellency  Count  Nigra  asked  that  the  tribunal  be  authorized  to  fix  a 
period  within  which  the  award  should  be  executed.  Dr.  Zorn  opposed  this.  At 
the  close  of  the  discussion  of  a  draft  communicated  to  the  various  Governments 
it  was  recognized  that  it  was  preferable  not  to  make  an  absolute  statement  upon 
this  point,  and  his  Excellency  Count  Nigra  declared  that  he  would  not  insist  upon 
his  proposition. 

Article  53 

The  award  is  read  out  at  a  public  sitting  of  the  tribunal,  the  agents  and  coursel  cf  the 
parties  being  present  or  duly  summoned  to  attend. 

Article  53  deals  with  the  reading  of  the  decision  in  public  session.  "  In  the 
presence  of  the  agents  and  counsel  of  the  parties,"  ran  the  Russian  draft.  "  Or 
duly  summoned  to  attend,"  added  the  draft  of  the  committee. 

"  The  agents  and  counsel  of  the  parties  being  present  or  duly  summoned  to 
attend,"  says  the  text  finally  adopted  at  the  suggestion  of  Mr.  Odier. 

Article  54 

The  award,  duly  pronounced  and  notified  to  the  agents  of  the  parties  at  variance, 
settles  the  dispute  definitively  and  without  appeal. 

Article  54  is  uniform,  except  for  details  of  revision,  with  the  corresponding 
provision  of  the  Russian  draft,  and  insists  upon  the  decisive  and  unappealable 
character  of  the  arbitral  award. 


150  PLENARY  CONFERENCE 

Article  55 

The  parties  can  reserve  in  the  compromis  the  right  to  demand  the  revision  of  the 
award. 

In  this  case,  and  unless  there  be  an  agreement  to  the  contrary,  the  demand  must  be 
addressed  to  the  tribunal  which  pronounced  the  award.  It  can  onl>;  be  made  on  the  ground 
of  the  discovery  of  some  new  fact  which  is  of  a  nature  to  exercise  a  decisive  influence  upon 
the  award,  and  which,  at  the  time  the  discussion  was  closed,  was  unknown  to  the  tribunal 
and  to  the  party  demanding  the  revision. 

Proceedings  for  revision  can  only  be  instituted  by  a  decision  of  the  tribunal  expressly 
recording  the  existence  of  the  new  fact,  recognizing  in  it  the  character  described  in  the  pre- 
ceding paragraph,  and  declaring  the  demand  admissible  on  this  ground. 

The  compromis  fixes  the  period  within  which  the  demand  for  revision  must  be  made. 

The  question  of  the  revision  of  the  arbitral  award  was  first  vigorously  dis- 
cussed in  the  committee,  and  then  again  in  the  general  meeting  of  the  Third 
Commission. 

The  plan  for  the  institution  of  a  Permanent  Court  of  Arbitration  presented 
[106]  by  the  American  delegation  provided  as  follows,  in  Article  7: 

Every  litigant  party  which  submits  a  case  to  the  international  tribunal 
shall  have  the  right  to  a  second  hearing  of  its  cause  before  the  same  judges, 
within  the  three  months  following  the  announcement  of  the  decision,  if  it 
declares  that  it  can  call  new  witnesses  or  raise  questions  of  law  not  raised 
or  decided  at  the  first  hearing. 

The  American  delegation  proposed  the  introduction  of  this  rule  into  general 
arbitral  procedure  in  whatever  form  it  might  be  deemed  best. 

The  judicial  principle  upon  which  revision  is  based  was  set  forth  and  recog- 
nized. The  necessity  of  finally  deciding  disputes  referred  to  an  arbitral  tribunal, 
and  not  shaking  the  authority  of  the  award  rendered  by  the  arbitrators,  was  also 
defended. 

The  committee,  at  the  suggestion  of  President  Leon  Bourgeois,  by  a  majority 
vote  adopted  a  provision  writing  into  the  general  code  of  arbitral  procedure  the 
rule  of  revision  restricted  as  to  the  Court  to  take  cognizance  thereof,  as  to  the 
facts  which  should  furnish  a  basis  therefor,  and  as  to  the  period  within  which  it 
would  be  allowed. 

Revision  should  be  requested  of  the  tribunal  which  rendered  the  decision. 

It  cannot  be  based  upon  anything  except  the  discovery  of  a  new  fact  which 
would  have  been  of  such  a  nature  as  to  exercise  a  decisive  influence  upon  the 
award,  and  which,  after  the  close  of  the  discussions,  was  unknown  to  the  tribunal 
and  to  the  party  which  demanded  the  revision. 

As  to  the  period  within  which  the  request  for  a  revision  may  be  received,  it 
was  at  first  fixed  at  three  months,  then  at  six  months,  at  the  suggestion  of  Messrs. 
CoRRAGiONi  d'Orelli  and  Rolin,  delegates  from  Siam. 

His  Excellency  Count  Nigra  proposed  the  adoption  of  the  provisions  of 
Article  13  of  the  recent  treaty  of  arbitration  between  Italy  and  Argentine. 

A  compromise  proposal  was  then  made  in  the  committee  by  Mr.  Asser,  dele- 
gate from  the  Netherlands.  By  the  terms  of  this  proposition  the  parties  may 
reserve  the  right  in  the  compromis  to  demand  the  revision  of  the  arbitral  award, 
and  in  providing  for  this  request,  the  revision  is,  under  the  code  of  arbitral  pro- 
cedure, subject  to  the  same  conditions  as  heretofore  proposed. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  151 

However,  the  compromis  is  to  determine  the  period  within  which  the  demand 
for  revision  shall  be  made.  This  last  proposition,  made  by  the  American  delegation, 
was  adopted  by  the  Commission  at  the  same  time  as  the  proposition  of  Mr.  Asser. 

So  far  as  the  general  question  of  the  causes  which  may  nullify  an  arbitral 
award  are  concerned,  the  Russian  draft  contained  the  following  provision :  "  The 
arbitral  award  is  void  in  case  of  a  void  compromis  or  exceeding  of  powers,  or  of 
corruption  proved  against  one  of  the  arbitrators."  Mr.  Asser  asked,  for  his  part, 
if  some  Power  could  not  be  found  which  should  have  the  duty  of  declaring  an 
award  void,  in  order  not  to  leave  so  serious  a  decision  to  arbitrary  determination 
or  to  the  initiative  of  the  State  against  which  the  award  was  rendered. 

In  the  examination  of  this  question,  the  committee  stopped  before  the 
difficulties  of  providing  for  cases  of  invalidity  without  determining  at  the  same 
time  who  should  be  made  the  judge  of  these  cases.  It  was  observed,  however, 
that  the  Pennanent  Court  of  Arbitration  could  guide  States  to  a  solution  of  this 
matter. 

Article  56 

The  award  is  binding  only  on  the  parties  who  concluded  the  compromis. 

When  there  is  a  question  as  to  the  interpretation  of  a  convention  to  which  Powers 
other  than  those  in  dispute  are  parties,  the  latter  notify  to  the  former  the  compromis  they 
have  concluded.  Each  of  these  Powers  is  entitled  to  intervene  in  the  case.  If  one  or 
more  avail  themselves  of  this  right,  the  interpretation  contained  in  the  award  is  equally 
binding  on  them. 

The  provision  contained  in  Article  56  is  due  to  the  suggestion  of  Mr.  Asser. 

A  question  of  interpretation  may  arise  between  two  Powers  concerning  a  con- 
vention to  which  other  Powers  were  parties.  When  it  is  a  question  of  so-called 
"  Universal  Unions  "  the  parties  in  litigation  ordinarily  represent  but  a  very  small 
number  of  the  contracting  parties. 

Mr.  Asser  believed  it  was  important  to  provide  for  notifying  the  other 
Powers  of  the  compromis  entered  into  by  parties  litigant,  so  that  the  former  might 
be  in  a  position  to  intervene  in  the  case. 

When  they  avail  themselves  of  this  opportunity  the  interpretation  contained 
in  the  decision  becomes  equally  binding  on  them. 

Mr.  Asser  drew  up  a  provision  along  this  line.     It  was  unanimously  adopted. 

Article  57 
Each  party  pays  its  own  expenses  and  an  equal  share  of  the  expenses  of  the  tribunal. 

[107]  The  question  of  the  expenses  of  the  operation  of  arbitral  tribunals  was 
regulated  according  to  actual  practice. 

Each  party  bears,  independently  of  its  own  expenses,  an  equal  part  of  the 
expenses  of  the  tribunal. 

The  honorariums  of  the  arbitrators  are  included  in  the  latter  expenses. 

There  are  some  expenses  which  can  only  be  determined  in  each  case  by  the 
tribunal.  For  others  the  administrative  council  in  case  of  need  may  adopt  a 
schedule  of  charges.     Custom  will  assist  in  establishing  rules  in  this  regard. 


152  PLENARY  CONFERENCE 

General  Provisions 

The  Convention  for  the  pacific  settlement  of  international  disputes  contains 
under  the  title  "  General  provisions  "  some  final  rules  concerning  ratification, 
adhesions  and  denunciations.     The  rules  follow. 

Article  58 

The  present  Convention  shall  be  ratified  as  speedily  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  proces-verbal  shall  be  drawn  up  recording  the  receipt  of  each  ratification,  and  a 
copy  duly  certified  shall  be  sent,  through  the  diplomatic  channel,  to  all  the  Powers  that 
were  represented  at  the  International  Peace  Conference  at  The  Hague. 

As  Mr.  Renault  observed : 

This  article  is  only  a  reproduction  of  the  provisions  of  the  same  char- 
acter inserted  in  the  Conventions  concerning  the  laws  and  customs  of  war  on 
land  and  the  adaptation  of  the  principles  of  the  Geneva  Convention  to  mari- 
time warfare.    They  are  identical  and  corresponding  provisions. 

[They  comprise]  the  ordinary  provisions  regarding  ratification.  The 
form  for  the  deposit  of  ratifications  has,  however,  been  simplified. 

It  was  not  necessary  to  make  a  reservation  for  the  action  of  parliaments. 
Each  sovereign  or  head  of  a  State  should  decide  to  what  extent  he  is  free 
to  ratify  the  Convention. 

Article  59 

Non-signatory  Powers  which  have  been  represented  at  the  International  Peace  Con- 
ference may  adhere  to  the  present  Convention.  For  this  purpose  they  must  make  known 
their  adhesion  to  the  contracting  Powers  by  a  written  notification  addressed  to  the  Nether- 
land  Government,  and  communicated  by  it  to  all  the  other  contracting  Powers. 

Article  60 

The  conditions  on  which  the  Powers  which  have  not  been  represented  at  the  Inter- 
national Peace  Conference  may  adhere  to  the  present  Convention  shall  form  the  subject 
of  a  subsequent  agreement  between  the  contracting  Powers. 

Mr.  Renault  says,  in  the  report  of  the  Drafting  Committee  of  the  Final  Act : 

Articles  59  and  60  govern  the  matter  of  adhesion.  They  differ  from  the  final 
clause  of  the  other  Conventions,  which  are  absolutely  open  except  for  the  slight 
difference  which  has  already  been  indicated  with  respect  to  the  Convention  relat- 
ing to  the  Red  Cross. 

The  present  Convention  contemplates  two  different  conditions:  a  distinction 
has  been  made  between  Powers  represented  at  the  Conference  and  those  which 
are  not.     Articles  59  and  60  provide  for  these  two  conditions. 

The  Powers  represented  at  The  Hague  have  two  methods  of  becoming  con- 
tracting Parties :  they  may  sign  immediately,  or  before  December  31,  1899.  After 
that  date,  they  will  have  to  adhere  to  the  Convention ;  but  they  have  the  right  so 
to  do.  Their  adhesion  is  subject  to  the  same  rules  as  those  which  govern  the 
other  two  Conventions.     This  is  the  object  of  Article  59. 

Article  60  provides  for  the  case  of  Powers  not  represented  at  the  Conference. 
Such  Powers  may  adhere  to  the  Convention,  but  the  conditions  of  their  adhesion 
are  reserved  for  a  future  agreement  between  the  contracting  Powers.     They, 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  153 

therefore,  have  not  the  same  right  as  is  recognized  with  respect  to  the  Powers 

represented. 

This  very  simple  solution  was  not  reached  in  a  very  simple  way.     It  gave  rise 

to  lively  and  lengthy  discussions,  which  changed  the  modest  character  of  the 

Drafting  Committee  and  caused  it  to  take  up  questions  which  were  diplomatic 

and  political  rather  than  questions  of  style  and  wording.     The  reporter  believes 
that  he  cannot  better  state  the  different  systems  which  were  upheld  in 

[108]  the  committee  than  by  repeating  to  the  Conference  the   following  ad- 
dress, delivered  at  the  last  session  of  the  committee  by  Mr,  Asser,  its 

president,  which  summarizes  most  completely  the  origin  of  Article  60 : 

Gentlemen  :  The  discussions  of  international  gatherings  like  our  Con- 
ference assume  at  times  the  character  of  parliamentary  debates,  at  others  that 
of  diplomatic  negotiations. 

In  the  matter  with  which  the  Drafting  Committee  has  had  to  deal  these 
last  few  days,  our  debates  have  assumed  the  latter  character. 

The  result  is  that,  on  the  one  hand,  the  individual  opinions  of  the  members 
of  our  committee  and  of  the  delegates  who  have  been  good  enough  to  lend  us 
their  aid  are  subject — still  more  than  in  discussions  of  a  different  nature — to 
the  sanction  of  the  Governments ;  and,  on  the  other  hand,  to  reach  a  practical 
result  unanimity  is  indispensable. 

If,  from  this  double  point  of  view,  we  consider  the  impression  which 
the  discussions  of  these  last  few  days  are  bound  to  make,  I  believe  I  may 
state  that  all  of  us  (delegates  and  Governments)  desire  that  it  may  be 
possible  to  bring  about  adhesion  to  the  Convention  relating  to  the  pacific 
settlement  of  international  disputes  by  Powers  who  have  not  taken  part  in 
the  Peace  Conference;  but  that,  at  the  same  time,  there  exists  a  great  dif- 
ference of  opinion  as  to  whether  the  right  to  adhere  should  be  granted  abso- 
lutely or  should  be  dependent  upon  certain  conditions ;  and,  in  the  latter  case, 
what  these  conditions  should  be. 

On  the  one  hand,  it  was  warmly  argued  that  the  Convention  with  which 
we  are  dealing  should  be  completely  assimilated  to  the  other  Conventions, 
the  text  of  which  has  been  decided  upon  by  the  Conference — which  assimi- 
lation was,  indeed,  voted  by  the  committee  of  examination  of  the  Third 
Commission. 

This  implied  the  absolute  right  of  all  Powers  to  adhere  to  the  Convention 
ty  means  of  a  simple  declaration. 

On  the  other  hand,  it  was  maintained  that  this  right  should  depend 
either  on  the  express  consent  of  all  the  contracting  States,  or  on  their  tacit 
consent,  which  they  would  be  considered  to  have  given  if,  within  a  fixed  time, 
no  Power  opposed  the  adhesion;  or,  lastly,  on  the  consent  of  a  majority,  in 
the  sense  that  the  adhesion  should,  in  case  of  opposition,  be  sanctioned  by  a 
vote  of  the  Permanent  Council,  composed  of  all  the  diplomatic  representa- 
tives of  the  Powers  accredited  to  The  Hague,  a  proposition  which  I  had 
the  honor  of  submitting  to  you,  in  the  name  of  my  Government,  in  order 
that  no  one  Power  might  be  given  the  right  of  veto  in  this  matter. 

Lastly,  it  was  proposed  that  in  case  of  opposition  to  the  request  for 
permission  to  adhere,  the' adhesion  would  affect  only  the  Powers  that  had 
given  their  consent. 

I  cannot  now  repeat  the  arguments  which  were  developed  in  favor  of 
•each  of  these  systems. 

I  shall  confine  myself  to  stating  that  we  have  been  unable  to  find  a 
common  ground  for  a  unanimous  agreement  and  that  it  is  materially  impos- 


154  PLENARY  CONFERENCE 

sible,  in  the  short  time  we  still  have,  to  reach  such  an  agreement,  especially 
since  several  delegates  have  not  received  specific  instructions  upon  this  point. 

There  is  nothing  left  for  us  to  do,  therefore,  but  to  choose  between  the 
two  following  systems : 

Either  to  omit  purely  and  simply  the  clause  concerning  the  adhesion  of 
Powers  not  represented; 

Or,  admitting  the  principle  of  their  right  to  adhere,  to  leave  it  for  a 
future  agreement  between  the  Powers  to  determine  the  conditions  under 
which  adhesion  may  take  place. 

I  venture  to  point  out  that  it  would  appear  from  the  discussions  that 
the  latter  solution  should  be  adopted. 

It  has  been  recognized  by  all  that  it  is  desirable  to  open  the  door  to 
Powers  that  are  not  represented.  If  the  Convention  remained  silent  upon 
this  point,  it  would  by  that  very  fact  be  a  closed  convention,  a  thing  which 
we  do  not  desire.  If,  on  the  contrary,  it  provides  for  a  future  agreement, 
such  a  provision  is  in  effect  an  expression  of  the  hope  that  this  agreement 
can  be  brought  about. 

We  are  all  persuaded  that  the  Powers  will  endeavor  to  proceed  with  the 
greatest  diligence,  but  we  also  know  that  ratifications  cannot  be  obtained 
between  to-day  and  to-morrow.  Let  us  hope  that  the  time  which  elapses 
between  now  and  ratification  by  the  Powers  will  serve  to  lessen  the  diffi- 
culties, which  at  present  still  exist,  and  that  we  shall  be  more  and  more 
convinced  that  the  very  nature  of  the  Convention  in  question  seems  to 
admit  of  a  broad  and  liberal  system  in  the  matter  of  the  right  to  adhere. 

The  object  of  the  Convention  is  the  peaceful  settlement  of  international 
[109]   disputes,  and  it  determines  the  means  of  assuring  such  a  result. 

Well !  the  authors  of  this  Convention  must  necessarily  desire  that  all 
Powers,  even  those  which  are  not  represented  here,  join  in  this  work  of 
general  interest. 

Now  especially,  since  the  Convention  contains  no  clause  concerning  com- 
pulsory arbitration,  they  must  desire  that,  in  case  of  a  dispute  between  Powers 
not  represented  at  the  Conference,  or  between  one  of  them  and  a  Power 
which  is  represented,  the  Convention  may  bear  the  same  fruits  as  when 
there  is  a  dispute  between  contracting  Powers. 

Mr.  Renault  says  that  "  this  speech  is  the  best  exposition  of  the  reasons 
which  he  can  make,  and  he  will  add  nothing  further  to  the  comment  which  he  has 
been  authorized  to  make  concerning  the  form  and  the  bases  of  the  initial  and  final 
clauses  of  the  Conventions." 

Article  61 

In  the  event  of  one  of  the  high  contracting  Parties  denouncing  the  present  Convention, 
this  denunciation  would  not  take  effect  until  a  year  after  its  notification  made  in  writing  to 
the  Netherland  Government,  and  by  it  communicated  at  once  to  all  the  other  contracting 
Powers. 

This  denunciation  shall  have  effect  only  in  regard  to  the  notifying  Power. 

The  possibility  of  the  denunciation  of  the  Convention  by  some  State  has  been 
provided  for,  especially  with  a  view  to  preventing  any  immediate  and  far-reaching 
consequences  therefrom.  Of  the  same  clause  inserted  in  the  Convention  concern- 
ing the  laws  and  customs  of  war,  Mr.  Renault  spoke  in  these  words : 

In  order  to  avoid  surprises  we  have  decided  to  determine  the  procedure 
for  denunciation  by  a  clause  which  tends  rather  to  restrict  the  consequences 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  155 

than  to  encourage  the  practice  thereof.  Besides,  States  will  only  the  more 
freely  adhere  to  a  contractural  engagement  from  which  they  know  in  advance 
that  they  may  withdraw  at  a  given  time  in  case  of  need,  without  giving  to 
the  denunciation  the  almost  violent  character  which  it  would  seem  to  possess 
in  the  absence  of  a  special  provision. 

Two  declarations  of  a  general  character  were  made  concerning  the  Conven- 
tion, one  by  the  delegation  from  the  United  States  of  America,  and  one  by  the 
Ottoman  delegation. 

Declaration  of  the  United  States  of  America 

The  delegation  of  the  United  States  of  America,  on  signing  the  Convention 
for  the  pacific  settlement  of  international  disputes,  as  proposed  by  the  Inter- 
national Peace  Conference,  makes  the  following  declaration: 

Nothing  contained  in  this  Convention  shall  be  so  construed  as  to  require 
the  United  States  of  America  to  depart  from  its  traditional  policy  of  not 
intruding  upon,  interfering  with,  or  entangling  itself  in  the  political  ques- 
tions or  policy  or  internal  administration  of  any  foreign  State;  nor  shall 
anything  contained  in  the  said  Convention  be  construed  to  imply  a  relin- 
quishment by  the  United  States  of  America  of  its  traditional  attitude  toward 
purely  American  questions. 

Declaration  of  the  Ottoman  delegation 

The  Ottoman  delegation,  considering  that  the  work  of  this  Conference  has 
been  a  work  of  high  loyalty  and  humanity,  destined  solely  to  assure  general  peace 
by  safeguarding  the  interests  and  the  rights  of  each  one,  declares,  in  the  name  of 
its  Government,  that  it  adheres  to  the  project  just  adopted,  on  the  following 
conditions : 

1.  It  is  formally  understood  that  recourse  to  good  offices  and  mediation, 
to  commissions  of  inquiry  and  arbitration,  is  purely  facultative  and  could 
not  in  any  case  assume  an  obligatory  character  or  degenerate  into  inter- 
vention. 

2.  The  Imperial  Government  itself  will  be  the  judge  of  the  cases  where 
its  interests  would  permit  it  to  admit  these  methods  without  its  abstention  or 
refusal  to  have  recourse  to  them  being  considered  by  the  signatory  States 
as  an  unfriendly  act. 

It  goes  without  saying  that  in  no  case  could  the  means  in  question  be 
applied  to  questions  concerning  interior  regulation. 

[110]  The  reporter  has  completed  his  task.  In  the  few  hours  allotted  to  him 
to  accomplish  his  work  he  has  not  been  able  to  be  as  complete  as  he 
would  have  desired.    He  has  nevertheless  endeavored  to  be  exact. 

The  minutes  wherein  the  eminent  secretary  of  the  committee  of  examination 
has  recorded  so  many  remarkable  debates  have  made  the  reporter's  task  easier. 
The  cooperation  of  such  distinguished  and  devoted  members  of  the  general  secre- 
tarial staff  has  also  contributed  to  the  lightening  of  his  work. 

In  glancing  over  the  grand  total  of  the  work  accomplished  by  it,  the  Third 
Commission  may  credit  itself  with  having  pursued  the  noblest  and  highest  purpose 
in  a  spirit  which  has  constantly  maintained  itself  on  a  plane  coequal  with  this 
high  purpose. 


156  PLENARY  CONFERENXE 

The  maintenance  of  general  peace  by  the  loyal  cooperation  of  all ;  good  offices 
and  mediation  developed  into  a  powerful  instrument  for  the  preservation  or 
reestablishment  of  peaceful  relations ;  international  commissions  of  inquiry  regu- 
lated under  conditions  which  safeguard  liberty  and  give  important  guarantees ; 
arbitral  justice  broadly  recognized  without  being  imposed;  a  Permanent  Court  of 
Arbitration  established  and  attached  to  the  International  Bureau  at  The  Hague 
and  to  a  Permanent  Council  composed  of  the  diplomatic  representatives  of  the 
Powers ;  arbitral  procedure  defined  and  generalized  in  its  fundamental  principles : 
such  a  work  surely  answers  the  highest  aspirations  of  our  age. 

When  we  search  the  history  of  the  law  of  nations,  from  the  day  when  this 
law  was  established  upon  a  firm  basis  by  that  man  of  genius  to  whom  America 
has  recently  rendered  striking  homage  upon  his  native  soil;  when  we  search 
for  some  page  comparable  with  that  which  the  Hague  Conference  is  going  to 
write,  it  seems  difficult  to  find  a  more  fruitful  one. 

It  is  just  to  credit  this  honor  to  the  magnanimous  author  of  this  Conference, 
His  Majesty  the  Emperor  of  Russia. 

The  work  undertaken  upon  his  high  initiative  and  under  the  gracious  auspices 
of  Her  Majesty  the  Queen  of  the  Netherlands,  will  develop  in  the  future.  As  the 
president  of  the  Third  Commission  said  on  a  memorable  occasion,  "  the  farther 
we  advance  along  the  pathway  of  our  age,  the  more  clearly  its  importance  will 
appear." 

History  will  bear  witness  to  the  Hague  Conference,  because  that  great 
assembly  will  have  worked  sincerely  and  effectively  to  establish  and  organize 
peace  through  justice. 


Text  Submitted  to  the  Conference^ 

His  Majesty  the  German  Emperor,  King  of  Prussia;  His  Majesty  the 
Emperor  of  Austria,  King  of  Bohemia,  etc.,  and  Apostolic  King  of  Hungary ; 
His  Majesty  the  King  of  the  Belgians ;  His  Majesty  the  Emperor  of  China ;  His 
Majesty  the  King  of  Denmark;  His  Majesty  the  King  of  Spain  and  in  His  Name 
Her  Majesty  the  Queen  Regent  of  the  Kingdom;  the  President  of  the  United 
States  of  America;  the  President  of  the  United  Mexican  States;  the  President  of 
the  French  Republic;  Her  Majesty  the  Queen  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  Empress  of  India;  His  Majesty  the  King  of  the  Hellenes; 
His  Majesty  the  King  of  Italy;  His  Majesty  the  Emperor  of  Japan;  His  Royal 
Highness  the  Grand  Duke  of  Luxemburg,  Duke  of  Nassau;  His  Highness  the 
Prince  of  Montenegro;  Her  Majesty  the  Queen  of  the  Netherlands;  His  Imperial 
Majesty  the  Shah  of  Persia;  His  Majesty  the  King  of  Portugal  and  of  the 
Algarves,  etc.;  His  Majesty  the  King  of  Roumania;  His  Majesty  the  Emperor 
of  All  the  Russias;  His  Majesty  the  King  of  Serbia;  His  Majesty  the  King  of 
Siam ;  His  Majesty  the  King  of  Sweden  and  Norway ;  the  Swiss  Federal  Council ; 
His  Majesty  the  Emperor  of  the  Ottomans  and  His  Royal  Highness  the  Prince 
of  Bulgaria ; 

Animated  by  a  strong  desire  to  work  for  the  maintenance  of  general  peace ; 

'  This  text  was  accepted  without  modifications.  To  Articles  1  to  57,  first  adopted,  have 
been  added  the  preamble  and  Articles  58-61  concerning  ratifications,  adhesions,  and 
denunciations. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  157 

Resolved  to  promote  by  their  best  efforts  the  friendly  settlement  of  inter- 
national disputes; 

Recognizing  the  solidarity  uniting  the  members  of  the  society  of  civilized 
nations ; 

Desirous  of  extending  the  empire  of  law,  and  of  strengthening  the  apprecia- 
tion of  international  justice; 
[111]  Convinced  that  the  permanent  institution  of  a  tribunal  of  arbitration, 
accessible  to  all,  in  the  midst  of  the  independent  Powers,  will  contribute 
effectively  to  this  result; 

Having  regard  to  the  advantages  attending  the  general  and  regular  organi- 
zation of  the  procedure  of  arbitration ; 

Sharing  the  opinion  of  the  august  initiator  of  the  International  Peace  Con- 
ference that  it  is  expedient  to  record  in  an  international  agreement  the  principles 
of  equity  and  right  on  which  are  based  the  security  of  States  and  the  welfare  of 
peoples ; 

Being  desirous  of  concluding  a  Convention  to  this  effect,  have  appointed  as 
their  plenipotentiaries,  etc. 

Who,  after  having  communicated  their  full  powers,  found  in  good  and  due 
form,  have  agreed  on  the  following  provisions : 

PART  I. — The  Maintenance  of  General  Peace 

Article  1 

With  a  view  to  obviating  as  far  as  possible,  recourse  to  force  in  the  relations 
between  States,  the  signatory  Powers  agree  to  use  their  best  efforts  to  ensure  the 
pacific  settlement  of  international  differences. 

PART  11. — Good  Offices  and  Mediation 

Article  2 

In  case  of  serious  disagreement  or  dispute,  before  an  appeal  to  arms,  the 
signatory  Powers  agree  to  have  recourse,  as  far  as  circumstances  allow,  to  the 
good  offices  or  mediation  of  one  or  more  friendly  Powers. 

Article  3 

Independently  of  this  recourse,  the  signatory  Powers  deem  it  expedient  that 
one  or  more  Powers,  strangers  to  the  dispute,  should,  on  their  own  initiative,  and 
as  far  as  circumstances  may  allow,  offer  their  good  offices  or  mediation  to  the 
States  at  variance. 

Powers  strangers  to  the  dispute  have  the  right  to  offer  good  offices  or 
mediation,  even  during  the  course  of  hostilities. 

The  exercise  of  this  right  can  never  be  regarded  by  either  of  the  parties  in 
dispute  as  an  unfriendly  act. 

Article  4     - 

The  part  of  the  mediator  consists  in  reconciling  the  opposing  claims  and 
appeasing  the  feelings  of  resentment  which  may  have  arisen  between  the  States 
at  variance. 


158  PLENARY  CONFERENCE 

Article  5 

The  functions  of  the  mediator  are  at  an  end  when  once  it  is  declared,  either 
by  one  of  the  parties  to  the  dispute,  or  by  the  mediator  himself,  that  the  means  of 
reconciliation  proposed  by  him  are  not  accepted. 

Article  6 

Good  offices  and  mediation,  undertaken  either  at  the  request  of  the  parties 
in  dispute,  or  on  the  initiative  of  Powers  strangers  to  the  dispute,  have  exclusively 
the  character  of  advice  and  never  have  binding  force. 

Article  7 

The  acceptance  of  mediation  cannot,  unless  there  be  an  agreement  to  the 
contrary,  have  the  effect  of  interrupting,  delaying,  or  hindering  mobilization  or 
other  measures  of  preparation  for  war. 

It  if  takes  place  after  the  commencement  of  hostilities,  the  military  operations 
in  progress  are  not  interrupted,  unless  there  be  an  agreement  to  the  contrary. 

Article  8 

The  signatory  Powers  are  agreed  in  recommending  the  application,  when 

circumstances  allow,  of  special  mediation  in  the  following  form : 

[112]   In  case   of   a   serious   difference  endangering  the  peace,   the    States  at 

variance  choose  respectively  a  Power  to  which  they  entrust  the  mission 

of  entering  into  direct  communication  with  the  Power  chosen  on  the  other  side, 

with  the  object  of  preventing  the  rupture  of  pacific  relations. 

For  the  period  of  this  mandate,  the  term  of  which,  unless  otherwise  stipulated, 
can  not  exceed  thirty  days,  the  States  in  dispute  cease  from  all  direct  communi- 
cation on  the  subject  of  the  dispute,  which  is  regarded  as  referred  exclusively 
to  the  mediating  Powers,  which  must  use  their  best  efforts  to  settle  it. 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are  charged 
with  the  joint  task  of  taking  advantage  of  any  opportunity  to  restore  peace. 

PART  III. — International  Commissions  of  Inquiry 

Article  9 

In  disputes  of  an  international  nature  involving  neither  honor  nor  essential 
interests,  and  arising  from  a  difference  of  opinion  on  points  of  fact,  the  signatory 
Powers  deem  it  expedient  that  the  parties  who  have  not  been  able  to  come  to  an 
agreement  by  means  of  diplomacy,  should,  as  far  as  circumstances  allow,  institute 
an  international  commission  of  inquiry,  to  facilitate  a  solution  of  these  aisputes 
by  elucidating  the  facts  by  means  of  an  impartial  and  conscientious  investigation. 

Article  10 

The  international  commissions  of  inquiry  are  constituted  by  special  agree- 
ment between  the  parties  in  dispute. 

The  inquiry  convention  defines  the  facts  to  be  examined  and  the  extent  of 
the  powers  of  the  commissioners. 

It  settles  the  procedure. 

At  the  inquiry  both  sides  must  be  heard. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  159 

The  form  and  the  periods  to  be  observed,  if  not  stated  in  the  inquiry  conven- 
tion are  decided  by  the  commission  itself. 

Article  11 

International  commissions  of  inquiry  are  formed,  unless  otherwise  stipulated, 
in  the  manner  determined  by  Article  32  of  the  present  Convention. 

Article  12 

The  Powers  in  dispute  undertake  to  supply  the  international  commission  of 
inquiry,  as  fully  as  they  may  think  possible,  with  all  means  and  facilities  necessary 
to  enable  it  to  become  completely  acquainted  with  and  to  accurately  understand 
the  facts  in  question. 

Article  13 

The  international  commission  of  inquiry  communicates  its  report  to  the 
Powers  in  dispute,  signed  by  all  the  members  of  the  commission. 

Article  14 

The  report  of  the  international  commission  of  inquiry  is  limited  to  a  finding 
of  facts,  and  has  in  no  way  the  character  of  an  award.  It  leaves  to  the  Powers 
in  dispute  entire  freedom  as  to  the  effect  to  be  given  to  this  finding. 

PART  IV. — International  Arbitration 
Chapter  I. — The  system  of  arbitration 

Article  15 

International  arbitration  has  for  its  object  the  settlement  of  disputes  between 
States  by  judges  of  their  own  choice  and  on  the  basis  of  respect  for  law. 

Article  16 

In  questions  of  a  legal  nature,  and  especially  in  the  interpretation  or  appli- 
cation of  international  conventions,  arbitration  is  recognized  by  the  signa- 
[113]  tory  Powers  as  the  most  effective  and  at  the  same  time  the  most  equitable 
means  of  settling  disputes  which  diplomacy  has  failed  to  settle. 

Article  17 

The  arbitration  convention  is  concluded  for  questions  already  existing  or  for 
questions  which  may  arise  eventually. 

It  may  embrace  any  dispute  or  only  disputes  of  a  certain  category. 

Article  18 

The  arbitration  convention  implies  an  engagement  to  submit  in  good  faith 
to  the  arbitral  award. 

Article  19 

Independently  of  general  or  private  treaties  expressly  stipulating  recourse  to 
arbitration  as  obligatory  on  the  signatory  Powers,  these  Powers  reserve  to  them- 


160  PLENARY  CONFERENCE 

selves  the  right  of  concluding,  either  before  the  ratification  of  the  present  act 
or  later,  new  agreements,  general  or  private,  with  a  view  to  extending  obligatory 
arbitration  to  all  cases  which  they  may  consider  it  possible  to  submit  to  it. 

Chapter  II. — The  Permanent  Court  of  Arbitration 

Article  20 

With  the  object  of  facilitating  an  immediate  recourse  to  arbitration  for 
international  differences  which  it  has  not  Seen  been  possible  to  settle  by  diplomacy, 
the  signatory  Powers  undertake  to  organize  a  Permanent  Court  of  Arbitration, 
accessible  at  all  times  and  operating,  unless  otherwise  stipulated  by  the  parties, 
in  accordance  with  the  rules  of  procedure  inserted  in  the  present  Convention. 

Article  21 

The  Permanent  Court  shall  be  competent  for  all  arbitration  cases,  unless  the 
parties  agree  to  institute  a  special  tribunal. 

Article  22 

An  International  Bureau,  established  at  The  Hague,  serves  as  registry  for 
the  Court. 

This  Bureau  is  the  channel  for  communications  relative  to  the  meetings  of 
the  Court. 

It  has  the  custody  of  the  archives  and  conducts  all  the  administrative 
business. 

The  signatory  Powers  undertake  to  communicate  to  the  International  Bureau 
at  The  Hague  a  duly  certified  copy  of  any  conditions  of  arbitration  arrived  at 
between  them  and  of  any  award  concerning  them  delivered  by  a  special  tribunal. 

They  undertake  likewise  to  communicate  to  the  Bureau  the  laws,  regulations, 
and  documents  eventually  showing  the  execution  of  the  awards  given  by  the  Court. 

Article  23 

Within  the  three  months  following  its  ratification  of  the  present  act,  each 
signatory  Power  shall  select  four  persons  at  the  most,  of  known  competency  in 
questions  of  international  law,  of  the  highest  moral  reputation,  and  disposed  to 
accept  the  duties  of  arbitrators. 

The  persons  thus  selected  shall  be  inscribed,  as  members  of  the  Court,  in  a 
list  which  shall  be  notified  to  all  the  signatory  Powers  by  the  Bureau. 

Any  alteration  in  the  list  of  arbitrators  is  brought  by  the  Bureau  to  the 
knowledge  of  the  signatory  Powers. 

Two  or  more  Powers  may  agree  on  the  selection  in  common  of  one  or  more 
members. 

The  same  person  can  be  selected  by  diflferent  Powers. 

The  members  of  the  Court  are  appointed  for  a  term  of  six  years.  Their 
appointments  can  be  renewed. 

In  case  of  the  death  or  retirement  of  a  member  of  the  Court,  his  place  is  filled 
in  the  same  way  as  he  was  appointed. 


SEVENTH  MEETING,  JULY  25,  1899 :  ANNEXES  161 

[114]  Article  24 

When  the  signatory  Powers  wish  to  have  recourse  to  the  Permanent  Court 
for  the  settlement  of  a  difference  that  has  arisen  between  them,  the  arbitrators 
called  upon  to  form  the  tribunal  competent  to  decide  this  difference  must  be 
chosen  from  the  general  list  of  members  of  the  Court. 

Failing  the  composition  of  the  arbitration  tribunal  by  direct  agreement  of  the 
parties,  the  following  course  is  pursued: 

Each  party  appoints  two  arbitrators,  and  these  together  choose  an  umpire. 

If  the  votes  are  equally  divided,  the  choice  of  the  umpire  is  entrusted  to 
a  third  Power,  selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects  a 
different  Power,  and  the  choice  of  the  umpire  is  made  in  concert  by  the  Powers 
thus  selected. 

The  tribunal  being  thus  composed,  the  parties  notify  to  the  Bureau  their 
determination  to  have  recourse  to  the  Court  and  the  names  of  the  arbitrators. 

The  tribunal  of  arbitration  assembles  on  the  date  fixed  by  the  parties. 

The  members  of  the  Court,  in  the  performance  of  their  duties  and  out  of 
their  own  country,  enjoy  diplomatic  privileges  and  immunities. 

Article  25 

The  tribunal  of  arbitration  sits  ordinarily  at  The  Hague. 
Except  in  cases  of  necessity,  the  place  of  session  can  only  be  altered  by  the 
tribunal  with  the  assent  of  the  parties. 

Article  26 

The  International  Bureau  at  The  Hague  is  authorized  to  place  its  premises 
and  staff  at  the  disposal  of  the  signatory  Powers  for  the  use  of  any  special  board 
of  arbitration. 

The  jurisdiction  of  the  Permanent  Court  may,  within  the  conditions  laid 
down  in  the  regulations,  be  extended  to  disputes  between  non-signatory  Powers, 
or  between  signatory  Powers  and  non-signatory  Powers,  if  the  parties  are  agreed 
to  have  recourse  to  this  tribunal. 

Article  27 

The  signatory  Powers  consider  it  their  duty,  if  a  serious  dispute  threatens 
to  break  out  between  two  or  more  of  them,  to  remind  these  latter  that  the 
Permanent  Court  is  open  to  them. 

Consequently,  they  declare  that  the  fact  of  reminding  the  parties  at  variance 
of  the  provisions  of  the  present  Convention,  and  the  advice  given  to  them,  in  the 
highest  interests  of  peace,  to  have  recourse  to  the  Permanent  Court,  can  only 
be  regarded  in  the  nature  of  good  offices. 

Article  28 

A  Permanent  Administrative  Council,  composed  of  the  diplomatic  representa- 
tives of  the  signatory  Powers  accredited  to  The  Hague  and  of  the  Netherland 
Minister  for  Foreign  Affairs,  who  will  act  as  president,  shall  be  instituted  in  this 
town  as  soon  as  possible  after  the  ratification  of  the  present  act  by  at  least  nine 
Powers. 


162  PLENARY  CONFERENCE 

This  Council  will  be  charged  with  the  establishment  and  organization  of  the 
International  Bureau,  which  will  be  under  its  direction  and  control. 

It  will  notify  to  the  Powers  the  constitution  of  the  Court  and  will  provide 
for  its  installation. 

It  will  settle  its  rules  of  procedure  and  all  other  necessary  regulations. 

It  will  decide  all  questions  of  administration  which  may  arise  with  regard 
to  the  operations  of  the  Court. 

It  will  have  entire  control  over  the  appointment,  suspension  or  dismissal 
of  the  officials  and  employees  of  the  Bureau. 

It  will  fix  the  payments  and  salaries,  and  control  the  general  expenditure. 

At  meetings  duly  summoned  the  presence  of  five  members  is  sufficient  to 
render  valid  the  discussions  of  the  Council.  The  decisions  are  taken  by  a  majority 
of  votes. 

The  Council  communicates  to  the  signatory  Powers  without  delay  the  regu- 
lations adopted  by  it.  It  addresses  to  them  an  annual  report  on  the  labors  of  the 
Court,  the  working  of  the  administration,  and  the  expenditure. 

[115]  Article  29 

The  expenses  of  the  Bureau  shall  be  borne  by  the  signatory  Powers  in  the 
proportion  fixed  for  the  International  Bureau  of  the  Universal  Postal  Union. 


Chapter  III. — Arbitration  procedure 

Article  30 

With  a  view  to  encouraging  the  development  of  arbitration,  the  signatory 
Powers  have  agreed  on  the  following  rules  which  shall  be  applicable  to  arbitration 
procedure,  unless  other  rules  have  been  agreed  on  by  the  parties. 

Article  31 

The  Powers  which  have  recourse  to  arbitration  sign  a  special  act  (com- 
promis),  in  which  are  clearly  defined  the  subject  of  the  dispute  and  the  extent 
of  the  arbitrators'  powers.  This  act  implies  an  engagement  of  the  parties  to 
submit  in  good  faith  to  the  arbitral  award. 

Article  32 

The  duties  of  arbitrator  may  be  conferred  on  one  arbitrator  alone  or  on 
several  arbitrators  selected  by  the  parties  as  they  please,  or  chosen  by  them  from 
.the  members  of  the  Permanent  Court  of  Arbitration  established  by  the  present 
act. 

Failing  the  composition  of  the  tribunal  by  direct  agreement  of  the  parties,  the 
following  course  is  pursued : 

Each  party  appoints  two  arbitrators,  and  these  together  choose  an  umpire. 

If  the  votes  are  equally  divided  the  choice  of  the  umpire  is  entrusted  to  a 
third  Power,  selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects  a  different 
Power,  and  the  choice  of  the  umpire  is  made  in  concert  by  the  Powers  thus 
^selected. 


SEVENTH  MEETING,  JULY  25,  1899 :  ANNEXES  163 

Article  33 

When  a  sovereign  or  the  chief  of  a  State  is  chosen  as  arbitrator,  the  arbi- 
tration procedure  is  settled  by  him. 

Article  34 

The  umpire  is  ex  officio  president  of  the  tribunal. 

When  the  tribunal  does  not  include  an  umpire,  it  appoints  its  own  president. 

Article  35 

In  case  of  the  death,  retirement,  or  disability  from  any  cause  of  one  of  the 
arbitrators,  his  place  is  filled  in  the  same  way  as  he  was  appointed. 

Article  36 

The  tribunal's  place  of  session  is  selected  by  the  parties.  Failing  this  selec- 
tion the  tribunal  sits  at  The  Hague. 

The  place  thus  fixed  can  not,  except  in  case  of  necessity,  be  altered  by  the 
tribunal  without  the  assent  of  the  parties. 

Article  37 

The  parties  are  entitled  to  appoint  delegates  or  special  agents  to  attend  the 
tribunal  to  act  as  intermediaries  between  themselves  and  the  tribunal. 

They  are  further  authorized  to  commit  the  defense  of  their  rights  and 
interests  before  the  tribunal  to  counsel  or  advocates  appointed  by  them  for  this 
purpose. 

Article  38 

The  tribunal  decides  on  the  choice  of  languages  to  be  used  by  itself,  and  to  be 
authorized  for  use  before  it. 

[116]  Article  39 

As  a  general  rule  arbitration  procedure  comprises  two  distinct  phases :  plead- 
ings and  oral  discussions. 

The  pleadings  consist  in  the  communication  by  the  respective  agents  to  the 
members  of  the  tribunal  and  the  opposite  party  of  all  printed  or  written  acts  and 
of  all  documents  containing  the  grounds  relied  on  in  the  case.  This  communi- 
cation shall  be  made  in  the  form  and  within  the  time  fixed  by  the  tribunal  in 
accordance  with  Article  49. 

The  discussions  consist  in  the  oral  development  before  the  tribunal  of  the 
arguments  of  the  parties. 

Article  40 

Every  document  produced  by  one  party  must  be  communicated  to  the  other 
party. 

Article  41 

The  discussions  are  under  the  direction  of  the  president. 
They  are  only  public  if  it  be  so  decided  by  the  tribunal,  with  the  assent  of 
the  parties. 


164  PLENARY  CONFERENCE 

They  are  recorded  in  minutes  drawn  up  by  the  secretaries  appointed  by  the 
president.     These  minutes  alone  have  an  authentic  character. 

Article  42 

After  the  close  of  the  pleadings,  the  tribunal  is  entitled  to  refuse  discussion 
of  all  new  papers  or  documents  which  one  of  the  parties  may  wish  to  submit  to 
it  without  the  consent  of  the  other  party. 

Article  43 

The  tribunal  is  free  to  take  into  consideration  new  papers  or  documents  to 
which  its  attention  may  be  drawn  by  the  agents  or  counsel  of  the  parties. 

In  this  case,  the  tribunal  has  the  right  to  require  the  production  of  these 
papers  or  documents,  but  is  obliged  to  make  them  known  to  the  opposite  party. 

Article  44 

The  tribunal  can,  besides,  require  from  the  agents  of  the  parties  the  pro- 
duction of  all  papers,  and  can  demand  all  necessary  explanations.  In  case  of 
refusal,  the  tribunal  takes  note  of  it. 

Article  45 

The  agents  and  counsel  of  the  parties  are  authorized  to  present  orally  to  the 
tribunal  all  the  arguments  they  may  consider  expedient  in  defense  of  their  case. 

Article  46 

They  are  entitled  to  raise  objections  and  points.  The  decisions  of  the  tribunal 
on  these  points  are  final,  and  cannot  form  the  subject  of  any  subsequent  discussion. 

Article  47 

The  members  of  the  tribunal  are  entitled  to  put  questions  to  the  agents  and 
counsel  of  the  parties,  and  to  ask  them  for  explanations  on  doubtful  points. 

Neither  the  questions  put,  nor  the  remarks  made  by  members  of  the  tribunal 
in  the  course  of  the  discussions  can  be  regarded  as  an  expression  of  opinion  by 
the  tribunal  in  general,  or  by  its  members  in  particular. 

Article  48 

The  tribunal  is  authorized  to  declare  its  competence  in  interpreting  the 
compromis  as  well  as  the  other  treaties  which  may  be  invoked  in  the  case,  and  in 
applying  the  principles  of  international  law. 

Article  49 

The  tribunal  is  entitled  to  issue  rules  of  procedure  for  the  conduct  of  the  case, 
to  decide  the  forms  and  time  in  which  each  party  must  conclude  its  arguments,  and 
to  arrange  all  the  formalities  required  for  dealing  with  the  evidence. 

[117]  Article  50 

When  the  agents  and  counsel  of  the  parties  have  submitted  all  the  explana- 
tions and  evidence  in  support  of  their  case,  the  president  pronounces  the  discussion 
closed. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  165 

Article  51 
The  deliberations  of  the  tribunal  take  place  in  private.     Every  decision  is 
taken  by  a  majority  of  members  of  the  tribunal. 

The  refusal  of  a  member  to  vote  must  be  recorded  in  the  minutes. 

Article  52 
The  award,  given  by  a  majority  of  votes,  must  state  the  reasons  on  which 
it  is  based.     It  is  drawn  up  in  writing  and  signed  by  each  member  of  the  tribunal. 
Those  members  who  are  in  the  minority  may  record  their  dissent  when 
signing. 

Article  53 
The  award  is  read  out  at  a  public  sitting  of  the  tribunal,  the  agents  and 
counsel  of  the  parties  being  present,  or  duly  summoned  to  attend. 

Article  54 
The  award,  duly  pronounced  and  notified  to  the  agents  of  the  parties  at 
variance,  settles  the  dispute  definitively  and  without  appeal. 

Article  55 

The  parties  can  reserve  in  the  compromis  the  right  to  demand  the  revision 
of  the  award. 

In  this  case,  and  unless  there  be  an  agreement  to  the  contrary,  the  demand 
must  be  addressed  to  the  tribunal  which  pronounced  the  award.  It  can  only  be 
made  on  the  ground  of  the  discovery  of  some  new  fact  which  is  of  a  nature  to 
exercise  a  decisive  influence  upon  the  award  and  which,  at  the  time  the  discussion 
was  closed,  was  unknown  to  the  tribunal  and  to  the  party  demanding  the  revision. 

Proceedings  for  revision  can  only  be  instituted  by  a  decision  of  the  tribunal 
expressly  recording  the  existence  of  the  new  fact,  recognizing  in  it  the  character 
described  in  the  preceding  paragraph,  and  declaring  the  demand  admissible  on  this 
ground. 

The  compromis  fixes  the  period  within  which  the  demand  for  revision  must 
be  made. 

Article  56 

The  award  is  binding  only  on  the  parties  who  concluded  the  compromis. 

When  there  is  a  question  as  to  the  interpretation  of  a  convention  to  which 
Powers  other  than  those  in  dispute  are  parties,  the  latter  notify  to  the  former 
the  compromis  they  have  concluded.  Each  of  these  Powers  is  entitled  to  inter- 
vene in  the  case.  If  one  or  more  avail  themselves  of  this  right,  the  interpretation 
contained  in  the  award  is  equally  binding  on  them. 

Article  57 
Each  party  pays  its  own  expenses  and  an  equal  share  of  the  expenses  of 
the  tribunal. 

General   Provisions 

Article  58 
The  present  Convention  shall  be  ratified  as  speedily  as  possible. 
The  ratifications  shall  be  deposited  at  The  Hague, 


166  PLENARY  CONFERENCE 

A  proces-verhal  shall  be  drawn  up  recording  the  receipt  of  each  ratification, 
and  a  copy  duly  certified  shall  be  sent,  through  the  diplomatic  channel,  to  all 
the  Powers  that  were  represented  at  the  International  Peace  Conference  at  The 
Hague. 

Article  59 
Non-signatory   Powers  which  have  been  represented  at  the   International 
Peace  Conference  may  adhere  to  the  present  Convention.    For  this  purpose 
[118]  they  must  make  known  their  adhesion  to  the  contracting  Powers  by  a 
written  notification  addressed  to  the  Netherland  Government,  and  com- 
municated by  it  to  all  the  other  contracting  Powers. 

Article  60 
The  conditions  on  which  the  Powers  which  have  not  been  represented  at  the 
International  Peace  Conference  may  adhere  to  the  present  Convention  shall  form 
the  subject  of  a  subsequent  agreement  between  the  contracting  Powers. 

Article  61 

In  the  event  of  one  of  the  high  contracting  Parties  denouncing  the  present 
Convention,  this  denunciation  would  not  take  effect  until  a  year  after  its  noti- 
fication made  in  writing  to  the  Netherland  Government,  and  by  it  communicated 
at  once  to  all  the  other  contracting  Powers. 

This  denunciation  shall  have  effect  only  in  regard  to  the  notifying  Power. 

In  faith  of  which  the  plenipotentiaries  have  signed  the  present  Convention 
and  have  affixed  their  seals  thereto. 

Done  at  The  Hague,  July  29,  1899,  in  a  single  original,  which  shall  remain 
deposited  in  the  archives  of  the  Netherland  Government,  and  copies  of  which, 
duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  the  contracting 
Powers. 


[119]     Annexes  to  the  Report  upon  the  Convention  for  the  Pacific 
Settlement  of  International  Disputes 

ANNEX  A.    DOCUMENTS  PRODUCED  BY  THE  RUSSIAN 

DELEGATION 

I.— OUTLINES  FOR  THE  PREPARATION  OF  A  DRAFT  CONVENTION  TO  BE 
CONCLUDED  BETWEEN  THE  POWERS  TAKING  PART  IN  THE  HAGUE 
CONFERENCE 

Good  offices  and  mediation 

Article  1 
With  the  purpose  of  obviating,  as  far  as  possible,  recourse  to  force  in  inter- 
national relations,  the  signatory  Powers  have  agreed  to  use  their  best  efforts  to 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  167 

bring  about  by  pacific  means  the  settlement  of  disputes  which  may  arise  between 
them. 

Article  2 

Consequently,  the  signatory  Powers  have  decided  that,  in  case  of  serious 
disagreement  or  dispute,  before  an  appeal  to  arms,  they  will  have  recourse,  so  far 
as  circumstances  admit,  to  the  good  offices  or  mediation  of  one  or  more  friendly 
Powers. 

Article  3 

In  the  case  of  mediation  accepted  spontaneously  by  the  States  at  variance,  the 
object  of  the  Government  acting  as  mediator  is  to  reconcile  the  opposing  claims 
and  appease  the  feelings  of  resentment  which  may  have  arisen  between  these 
States. 

Article  4 

The  part  of  the  Government  acting  as  mediator  is  at  an  end  when  the  settle- 
ment proposed  by  it  or  the  bases  of  a  friendly  settlement  which  it  may  have 
suggested  are  not  accepted  by  the  States  at  variance. 

Article  5 

The  Powers  consider  it  useful  in  case  of  serious  disagreement  or  conflict 
between  civilized  States  concerning  questions  of  a  political  nature,  independently 
of  the  recourse  which  these  Powers  might  have  to  the  good  offices  and  mediation 
of  Powers  not  involved  in  the  dispute,  for  the  latter,  on  their  own  initiative  and 
so  far  as  circumstances  will  allow,  to  offer  their  good  offices  or  their  mediation 
in  order  to  smooth  away  the  difficulty  which  has  arisen,  by  proposing  a  friendly 
settlement,  which  without  affecting  the  interest  of  other  States,  might  be  of  such 
a  nature  as  to  reconcile  in  the  best  way  possible  the  interests  of  the  parties  to 
the  dispute. 

[120]  Article  6 

It  is  of  course  understood  that  mediation  and  good  offices,  undertaken  either 
on  the  initiative  of  the  litigant  parties  or  upon  that  of  the  neutral  Powers,  have 
strictly  the  character  of  friendly  advice  and  no  binding  force  whatever. 

International  arbitration 

Article  7 

With  regard  to  those  controversies  concerning  legal  questions,  and  espe- 
cially with  regard  to  those  concerning  the  interpretation  or  application  of  treaties 
in  force,  arbitration  is  recognized  by  the  signatory  Powers  as  being  the  most 
eflfective  and  at  the  same  time  the  most  equitable  means  for  the  friendly  settlement 
of  these  disputes. 

Article  8 

The  contracting  Powers  consequently  agree  to  have  recourse  to  arbitration 
in  cases  involving  questions  of  the  character  above  mentioned,  so  far  as  they 
do  not  concern  the  vital  interest  or  national  honor  of  the  parties  in  dispute. 


168  PLENARY  CONFERENCE 

Article  9 

Each  State  remains  the  sole  judge  of  whether  this  or  that  case  should  be 
submitted  to  arbitration,  excepting  those  enumerated  in  the  following  article, 
in  which  case  the  signatory  Powers  to  the  present  document  consider  arbitra- 
tion as  obligatory  upon  them. 

Article  10 

Upon  the  ratification  of  the  present  document  by  all  the  signatory  Powers, 
arbitration  will  be  obligatory  in  the  following  cases,  so  far  as  they  do  not  concern 
the  vital  interests  nor  national  honor  of  the  contracting  States : 

I.  In  case  of  differences  or  disputes  relating  to  pecuniary  damages  suffered 
by  a  State,  or  its  nationals,  as  a  consequence  of  illegal  actions  or  negligence  on 
the  part  of  another  State  or  its  nationals: 

II.  In  case  of  disagreement  relating  to  the  interpretation  or  application  of 
the  treaties  and  conventions  mentioned  below : 

1.  Treaties  and  conventions  relating  to  the  posts  and  telegraphs,  railroads, 
and  also  those  bearing  upon  the  protection  of  submarine  telegraph  cables ;  regu- 
lations concerning  methods  to  prevent  collisions  of  vessels  on  the  high  seas; 
conventions  relating  to  the  navigation  of  international  rivers  and  interoceanic 
canals. 

2.  Conventions  concerning  the  protection  of  literary  and  artistic  property 
as  well  as  industrial  property  (patents,  trade-marks,  and  trade-names)  ;  con- 
ventions relating  to  money  and  measures;  conventions  relating  to  sanitation 
and  veterinary  surgery,  and  for  the  prevention  of  phylloxera. 

3.  Conventions  relating  to  inheritance,  exchange  of  prisoners,  and  reciprocal 
assistance  in  the  administration  of  justice. 

4.  Conventions  for  marking  boundaries,  so  far  as  they  concern  purely  tech- 
nical and  non-political  questions. 

Article  11 

The  enumeration  of  the  cases  mentioned  in  the  above  article  may  be  com- 
pleted by  subsequent  agreements  between  the  signatory  Parties  of  the  present 
act. 

Besides,  each  of  them  may  enter  into  a  special  agreement  with  any  other 
Power,  with  a  view  to  making  arbitration  obligatory  in  the  above  cases  before 
general  ratification,  as  well  as  to  extend  the  scope  thereof  to  all  cases  which 
the  State  may  deem  it  possible  to  submit  to  arbitration. 

Article  12 

In  all  other  cases  of  international  disputes,  not  mentioned  in  the  above 
articles,  arbitration,  while  certainly  very  desirable  and  recommended  by  the 
present  act,  is  only  voluntary;  that  is  to  say,  it  cannot  be  resorted  to  except 
upon  the  suggestion  of  one  of  the  parties  in  litigation,  made  of  its  own  accord 
and  with  the  express  consent  and  full  agreement  of  the  other  party  or  parties. 

[121]  Article  13 

With  a  view  to  facilitating  recourse  to  arbitration  and  its  application,  the 
signatory  Powers  have  agreed  to  define  by  common  agreement  the  fundamental 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  169 

principles  to  be  observed  by  the  institution,  and  the  rules  of  procedure  to  be 
followed  during  the  examination  of  the  dispute  and  the  delivery  of  the  arbitral 
decision  in  cases  of  international  arbitration. 

The  application  of  these  fundamental  principles,  as  well  as  of  arbitral 
procedure,  indicated  in  the  appendix  to  the  present  article,  may  be  modified 
by  a  special  agreement  between  the  States  which  resort  to  arbitration. 

International  commissions  of  inquiry 

Article  14 

In  cases  which  may  arise  between  the  signatory  States  where  differences 
of  opinion  with  regard  to  local  circumstances  have  given  rise  to  a  dispute  of 
an  international  character  which  cannot  be  settled  through  the  ordinary  diplo- 
matic channels,  but  wherein  neither  the  honor  nor  the  vital  interests  of  these 
States  is  involved,  the  interested  Governments  agree  to  form  an  international 
commission  of  inquiry  in  order  to  ascertain  the  circumstances  forming  the  basis 
of  the  disagreement  and  to  elucidate  all  the  facts  of  the  case  on  the  spot  by 
means  of  an  impartial  and  conscientious  investigation. 

Article  15 

These  international  commissions  are  formed  as  follows: 
Each  interested  Government  names  two  members  and  the  four  members 
together  choose  the  fifth  member,  who  is  also  the  president  of  the  commission. 
In  case  of  equal  voting  for  the  selection  of  a  president,  the  two  interested  Gov- 
ernments by  common  agreement  address  a  third  Government  or  a  third  person, 
who  shall  name  the  president  of  the  commission. 

Article  16 

The  Governments  between  which  a  serious  disagreement  or  a  dispute  under 
the  conditions  above  indicated  has  arisen,  undertake  to  supply  the  commission 
of  inquiry  with  all  means  and  facilities  necessary  to  a  thorough  and  conscientious- 
study  of  the  facts  in  the  case. 

Article  17 

The  international  commission  of  inquiry,  after  having  stated  the  circum- 
stances under  which  the  disagreement  or  dispute  has  arisen,  communicates  its 
report  to  the  interested  Governments,  signed  by  all  the  members  of  the  com- 
mission. 

Article  18 

The  report  of  the  international  commission  of  inquiry  has  in  no  way  the 
character  of  an  award ;  it  leaves  the  disputing  Governments  entire  freedom  either 
to  conclude  a  settlement  in  a  friendly  way  on  the  basis  of  the  above-mentioned 
report,  or  to  resort  to  arbitration  by  concluding  an  agreement  ad  hoc,  or  finally, 
to  resort  to  such  use  of  force  as  is  accepted  in  international  relations. 


170  PLENARY  CONFERENCE 

II.— EXPLANATORY  NOTES  CONCERNING  ARTICLES  5  AND  10  OF  THE  ABOVE 
OUTLINES  FOR  THE  PREPARATION  OF  A  DRAFT  CONVENTION 

(a)  Explanatory  Note  Concerning  Article  5  of  the  Russian  Draft 

The  Conference  which  is  about  to  meet  at  The  Hague  is  essentially  different 
from  those  which  were  held  in  Geneva  (in  1864),  at  St.  Petersburg  (in  1868), 
and  at  Brussels  (in  1874). 

These  early  conferences  intended  to  humanize  war  after  war  had  been  de- 
clared; while  the  assembly  convoked  at  The  Hague  must  devote  itself  especially 
to  the  discovery  of  methods  to  prevent  the  very  declaration  of  war.  The  Hague 
Conference  therefore  must  be  a  Peace  Conference  in  the  most  positive  sense  o£ 
the  term. 

.  Practice  in  international  law  has  worked  out  a  complete  set  of  methods  to 
prevent  war  by  the  pacific  settlement  of  international  disputes,  and  among 
[122]  these  must  be  set,  above  all,  good  offices,  mediation  and  arbitration.  It 
seems  very  natural  that  the  Conference  should  consider  the  perfecting  of 
the  guaranties  and  methods  already  existing  for  the  assurance  of  lasting  peace 
among  nations,  instead  of  seeking  new  means  which  have  not  been  tried  and 
sanctioned  by  practice.  With  this  in  mind  the  Conference  should  especially  give 
its  attention  to  "  good  offices  "  and  "  mediation  "  by  third  parties ;  that  is,  by 
Powers  which  are  not  involved  in  the  conflict  presumed  to  exist.* 

Mediation  should  doubtless  be,  from  its  very  nature,  placed  among  the  most 
useful  and  practical  methods  in  the  law  of  nations.  Being  a  necessary  response  to 
that  real  community  of  material  and  moral  interests  which  creates  an  international 
union  among  the  various  States,  mediation  should  inevitably  acquire  a  continually 
increasing  importance  and  value,  in  proportion  to  the  increasing  intimacy  among 
States  and  the  development  of  their  international  relations.  The  possible  ad- 
vantage of  mediation,  if  we  compare  it  with  the  other  methods  used  to  settle 
international  disputes,  is  especially  the  remarkable  elasticity  of  its  operation,  the 
ease  with  which  it  is  adapted  to  the  particular  circumstances  of  each  given 
"case,  as  well  as  the  variety  of  forms  arising  from  this  ease  of  adaptation.  Being 
dependent  upon  the  free  consent  of  the  parties,  mediation  does  not  in  the  least 
threaten  the  principle  of  their  sovereignty  nor  the  liberty  or  independence  of 
States ;  it  influences  the  arbitrator  freely  chosen  by  them  without  ever  opposing 
him,  without  ever  calling  him  in  question. 

There  is  no  doubt  that  arbitration,  generally  speaking,  is  a  more  effective 
and  more  radical  method  than  mediation ;  but  arbitration  being  of  a  legal  nature, 
its  application  is  essentially  and  even  exclusively  restricted  to  cases  where  there 
is  a  conflict  of  international  rights,  while  mediation,  although  of  a  political  char- 
acter, is  equally  applicable  to  the  conflicts  of  interests  which  most  often  threaten 
peace  among  nations.  Finally,  it  is  equally  essential  to  note  that  mediation 
is  distinguished  from  other  analogous  modes  of  action  by  an  astonishing  sim- 
plicity of  application  which  demands  no  previous  preparation  whatever.  This 
instrument,  in  daily  use  in  diplomacy,  tactfully  and  skillfully  handled  and  guided 

*  The  distinction  made  between  "  good  offices  "  and  "  mediation  "  is  entirely  theoretical. 
These  methods  are  legally  identical  in  character  and  differ  only  in  degree  and  the  im- 
portance of  their  results.  Diplomacy  has  never  insisted  upon  this  distinction.  (Cf.  Article 
9  of  the  Treaty  of  Paris  of  1856,  and  Article  23  of  the  protocol  of  the  Congress  of 
Paris,  1856.) 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  171 

by  a  sincere  desire  to  serve  in  the  work  of  peace,  seems  called  upon  to  play  a 
striking  and  beneficent  role  in  the  future. 

However,  mediation  has  up  to  the  present  played  a  most  modest  role  in  the 
settlement  of  international  difficulties ;  this  statement  is  supported  by  the  history 
of  even  the  most  recent  disputes. 

If  we  look  for  the  reason  for  this  fact,  we  must  consider  first  how  unsatis- 
factory is  the  status  of  mediation  in  the  theory  as  well  as  in  the  practice  of 
international  law. 

By  the  terms  of  Article  8  of  the  Treaty  of  Paris  the  Sublime  Porte,  as  well 
as  the  other  signatory  Powers  to  that  treaty,  is  bound  to  submit  every  future 
disagreement  which  may  arise  between  any  of  them  to  the  mediation  of  the  other 
Powers,  to  prevent  the  use  of  force. 

Giving  this  idea  a  more  general  scope,  Article  23  of  the  protocol  of  the  Con- 
gress of  Paris,  inserted  at  the  suggestion  of  Lord  Clarendon,  British  plenipoten- 
tiary, expresses  the  desire  that  States  between  which  serious  disagreements  may 
arise  shall  request  the  good  offices  of  a  friendly  Power  so  far  as  circumstances 
permit  rather  than  resort  to  arms. 

In  the  same  way,  at  the  African  Conference  at  Berlin,  in  1885,  the  Powers 
mutually  agreed  to  resort  first  of  all  to  mediation  by  one  or  several  neutral 
States  in  case  disagreement  arose  between  them  concerning  the  Kongo  and 
its  basin. 

The  provisions  above  set  forth  are  inspired  by  one  and  the  same  thought  ex- 
pressed in  almost  identical  terms.  They  oblige  all  the  States  interested  in  the 
dispute  to  request  mediation ;  they  do  not  mention  the  duty  of  neutrals  to  propose 
it.  From  this  point  of  view  mediation  imposes  duties  upon  the  States  directly 
interested  but  not  upon  neutral  States. 

This  sort  of  mediation,  very  irregular  from  a  theoretical  point  of  view,  has 
also  the  disadvantage  of  making  mediation  unattainable  from  a  practical  point 
of  view.  The  request  for  mediation  necessarily  presupposes  a  previous  agree- 
ment between  the  interested  States  with  regard  to  the  necessity  and  the 
[123]  opportunity  for  it.  Now,  such  an  agreement  is  not  always  possible  in 
the  heat  of  a  dispute  between  interests  diametrically  opposed  to  each  other. 
In  any  case  we  cannot  consider  the  making  of  the  request  for  mediation  obligatory 
on  the  part  of  the  States  whose  interests  are  in  question,  especially  since  that 
requires  that  opposing  desires  be  harmonized  and  that  the  parties  agree  in  the 
choice  of  a  mediator. 

Treaties,  unhappily  still  less  numerous,  which  make  the  request  for  arbitra- 
tion obligatory,  at  the  same  time  regulate,  and  generally  in  advance,  the  organiza- 
tion of  the  tribunal  called  upon  to  render  the  arbitral  decision,  without  making 
this  organization  dependent  upon  the  consent  or  dissent  of  the  interested  parties.^ 

It  goes  without  saying  that  treaties  cannot  deal  with  the  obligation  of  parties 

to  choose  a  mediator,  whose  advice  could  be  only  of  moral  effect  proportionate  to 

the  respect  and  confidence  which  he  inspired  in  the  interested  parties.     The 

designation  of  mediators  must  necessarily  be  brought  about  by  the  agreement  of 

the  parties ;  now,  since  this  agreement  depends  absolutely  upon  their  good-will, 

and  may,  even  if  this  good-will  is  secured,  be  unattainable,  it  follows  that  we 

should  not  consider  the  request  for  mediation  as  Obligatory  upon  the  States 

'  See,  for  example,  Article  16  of  the  General  Postal  Convention  signed  at  Berne  in  1874, 
and  Article  8  of  the  treaty  signed  at  Washington  in  1890. 


172  PLENARY  CONFERENCE 

directly  interested.  Even  if  the  treaties  did  impose  such  a  duty  upon  States, 
in  case  of  a  dispute  this  duty  would  still  be,  generally  speaking,  ineffective,  because 
conventions  could  not  oblige  States,  in  spite  of  everything,  to  agree  upon  this  or 
that  mediator. 

This  view  is  confirmed  by  the  history  of  international  relations  since  the 
Congress  of  Paris,  1856.  Thus  within  the  last  forty  years  there  have  been  several 
cases  where  neutral  States,  referring  to  Article  23  of  the  protocol  of  the  Congress 
of  Paris,  have  offered  their  mediation  and  good  offices  to  States  in  controversy ; 
but  there  has  tiot  been  a  single  case  where  the  States  in  controversy  have  ad- 
dressed a  request  for  mediation  to  neutral  States.  Last  year,  at  the  time  of  the 
dispute  between  France  and  England  concerning  Fashoda,  neither  one  nor  the 
other  of  these  Powers  thought  of  resorting  to  the  provisions  adopted  at  the 
Conference  at  Berlin  in  1885,  and  did  not  appeal  to  the  mediation  of  a  third 
Power.     We  might  cite  other  examples  of  a  similar  character. 

As  for  the  obligation  of  neutral  States  to  offer  mediation  to  States  in  con- 
troversy when  not  established  by  treaty,  this  is  not  recognized  nor  observed  by 
any  one.  In  theory,  too,  some  authors  have  gone  so  far  as  to  assert  that  neutral 
States  are  not  only  not  obliged  to  offer  mediation  to  disputing  States,  but  that 
they  have  not  the  right  to  do  so.  Bluntschli  and  Heffter  consider  mediation 
as  a  dangerous  and  injurious  interference  in  the  affairs  of  others.  Hautefeuille 
and  Galiani  advise  States  prudendy  to  abstain  from  mediation,  fearing  to  alien- 
ate the  sympathies  of  one  or  other  of  the  parties  in  controversy  without  justifica- 
tion. In  short,  we  might  cite,  as  a  matter  of  practice,  a  number  of  examples  of 
serious  disputes,  which  later  ended  in  war,  which  did  not  suggest  to  neutrals  the 
least  idea  of  attempting  to  offer  mediation ;  however,  proposals  of  this  character, 
especially  in  cases  where  they  might  have  come  simultaneously  from  several 
Powers,  could  have  prevented  wars  the  effects  of  which  have  been  incalculable 
upon  all  the  States  constituting  the  international  community. 

In  many  cases  the  offer  of  mediation  comes  so  late  and  in  such  uncertain 
terms  that  it  cannot  prevent  war.  For  example,  such  was  the  case  when  the 
French  Government  in  1870  refused  the  "  good  offices  "  of  England  when  the  wai 
broke  out  between  France  and  Germany. 

Finally,  it  often  happens  that  mediation  is  proposed  not  with  the  view  to 
prevent  war,  but  in  order  to  end  it. 

Several  recent  wars — the  Austro-Prussian  War  of  1866,  that  between  Chile, 
Peru,  and  Bolivia  in  1882,  that  between  Greece  and  Turkey  in  1897,  and  still 
others — were  terminated  thanks  to  the  mediation  of  neutral  Powers.  If  these 
same  Powers  had  made  use  of  all  the  energy  they  employed  to  terminate  these 
wars  in  an  effort  to  prevent  them,  it  is  possible  that  Europe  would  have  been 
spared  more  than  one  armed  conflict. 

After  what  has  just  been  said,  it  is  not  difficult  to  indicate  the  way  for  the 
Conference  to  increase  the  importance  and  enlarge  the  scope  of  mediation,  by 
making  it  a  permanent  and  necessary  institution  in  international  law.  Innumer- 
able reciprocal  entangling  interests  envelop  civilized  States  in  a  close  and  inex- 
tricable net.  The  principle  of  isolation,  which  but  lately  still  dominated 
[124]  the  political  life  of  each  nation,  has  given  way  henceforth  to  a  close 
solidarity  of  interests,  to  common  participation  in  the  moral  and  material 
benefits  of  civilization. 

Modern  States  cannot  stand  indifferent  to  international  conflicts  wherever 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  173 

they  may  arise  and  whoever  may  be  the  parties  in  controversy.  At  the  present 
time,  a  war  between  even  two  States  seems  to  be  an  international  evil.  To  fight 
this  evil  it  is  necessary  to  employ  methods  of  a  general  character;  we  must 
combine  the  efforts  of  each  and  every  State. 

From  this  point  of  view,  each  Power  must  employ  its  every  effort  to  bring 
into  action  all  its  energies  to  prevent  conflicts  which  threaten  peace,  while  re- 
specting, of  course,  the  independence  of  other  sovereign  States.  In  particular, 
each  State  should,  so  far  as  circumstances  allow,  offer  mediation  to  disputing 
States  the  moment  it  has  the  least  hope  of  preventing  thereby  the  terrible .  evils 
of  war. 

It  is  because  they  realize  the  serious  consequences  which  one  or  another 
result  of  war  may  have  for  the  international  community,  that  neutral  States 
ordinarily  offer  to  the  belligerent  parties  mediation  for  the  conclusion  of  peace. 
Mediation  of  this  character,  generally  collective,  often  makes  it  impossible  for 
the  victor  to  derive  from  his  victories  the  advantages  for  which  the  war  was 
undertaken. 

The  important  fact,  without  doubt,  so  far  as  neutral  States  are  concerned, 
is  not  merely  the  result  of  a  war  but  the  very  fact  that  it  has  taken  place.  It 
follows  that  the  interests  of  neutrals  require  that  mediation  should  be  proposed 
by  them  not  only  to  end  a  war  already  begun,  but  above  all  to  prevent  the  out- 
break. This  is  also  to  the  interest  of  the  States  in  controversy,  and  all  the  more 
so  since  when  war  breaks  out  each  belligerent  State  is  interested  to-day  in 
knowing  the  attitude  of  the  neutral  Powers  with  regard  to  the  conflict  in  order 
to  be  able  to  calculate  and  determine,  not  only  the  power  of  resistance  of  the 
adversary  during  the  wax,  but  also  the  pressure  which  will  come  from  the  neutral 
Powers  at  the  conclusion  of  peace. 

The  theory  of  international  law,  as  shown  by  its  most  highly  respected  repre- 
sentatives, such  as  Travers  Twiss,  Phillimore,  Pradier-Fodere,  Martens, 
and  others,  has  for  a  long  time  considered  mediation  as  a  dttty  on  the  part  of 
neutral  States.  The  Peace  Conference  will  perhaps  deem  it  useful  to  proclaim 
this  duty  before  all  humanity,  so  that  mediation  will  be  given  the  value  of  a 
powerful  instrument  for  peace. 


/^ 


Explanatory  Note  Concerning  Article  10  of  the  Russian  Draft 


In  entering  upon  an  examination  of  the  question  of  arbitration,  we  must 
first  of  all  bear  in  mind  the  essential  difference  between  obligatory  and  voluntary 
arbitration. 

As  a  general  question,  it  is  difficult  to  conceive  of  any  dispute  whatever 
of  a  legal  character,  arising  in  the  field  of  positive  international  law,  which  could 
not  by  virtue  of  agreement  between  the  parties  be  decided  by  means  of  volun- 
tary international  arbitration.  Even  in  case  international  law,  which  unfor- 
tunately still  contains  so  many  gaps,  does  not  furnish  a  generally  recognized  rule 
for  the  solution  of  the  concrete  question,  the  compromis  concluded  between  the 
parties  prior  to  the  arbitration  may,  however,  create  a  principle  ad  hoc,  and  in 
this  way  facilitate  considerably  the  task  of  the  arbitrator. 

It  is  different  with  obligatory  arbitration,  which  does  not  depend  upon  the 
special  consent  of  the  parties.  It  goes  without  saying  that  this  form  of  arbitra- 
tion cannot  apply  to  all  cases  and  all  kinds  of  disputes.    There  is  no  Government 


174  PLENARY  CONFERENCE 

which  would  consent  in  advance  to  assume  the  obligation  to  submit  to  the  decision 
of  an  arbitral  tribunal  every  dispute  which  might  arise  in  the  international  domain 
if  it  concerned  the  national  honor  of  a  State,  or  its  highest  interests,  or  its  in- 
alienable possessions.  In  fact,  the  mutual  rights  and  duties  of  States  are  deter- 
mined to  a  marked  degree  by  the  totality  of  what  we  call  political  treaties,  which 
are  nothing  but  the  temporary  expression  of  chance  and  transitory  relationship 
between  the  various  national  forces.  These  treaties  restrict  the  freedom  of  action 
of  the  parties  so  long  as  the  political  conditions  under  which  they  were  produced 
are  unchanged.  Upon  a  change  in  these  conditions  the  rights  and  obligations 
following  from  these  treaties  necessarily  change  also.  As  a  general  rule,  disputes 
which  arise  in  the  field  of  political  treaties  in  most  cases  concern  not  so  much 
a  difference  of  interpretation  of  this  or  that  principle,  as  the  changes  to  be 
made  in  the  treaty,  or  the  complete  abrogation  thereof. 

Powers  which  take  an  active  part  in  the  politics  of  Europe  cannot 
[125]  therefore  submit  disputes  arising  in  the  field  of  political  treaties  to  the 
examination  of  an  arbitral  tribunal,  in  whose  eyes  the  principle  established 
by  the  treaty  would  be  just  as  obligatory,  just  as  inviolable,  as  the  principle 
established  by  the  positive  law  in  the  eyes  of  any  national  tribunal  what- 
ever. 

From  the  point  of  view  of  practical  politics,  the  impossibility  of  universal 
obligatory  arbitration  seems  evident. 

But  from  another  point  of  view,  it  cannot  be  doubted  that  in  international 
life  differences  often  arise  which  may  absolutely  and  at  all  times  be  submitted 
to  arbitration  for  solution ;  these  are  questions  which  concern  exclusively  special 
points  of  law  and  which  do  not  touch  upon  the  vital  interests,  or  national  honor 
of  States.  We  do  not  desire  that  the  Peace  Conference  should,  so  far  as  these 
questions  are  concerned,  set  up  arbitration  as  the  permanent  and  obligatory 
method. 

The  recognition  of  the  obligatory  character  of  arbitration,  were  it  only 
within  the  most  restricted  limits,  would  strengthen  legal  principles  in  relations 
between  nations,  would  guarantee  them  against  infractions  and  encroachments; 
it  would  neutralise,  so  to  speak,  more  or  less,  large  fields  of  international  law. 
For  the  States  obligatory  arbitration  would  be  a  convenient  means  of  avoiding  the 
misunderstandings,  so  numerous,  so  troublesome,  although  of  little  importance, 
which  sometimes  fetter  diplomatic  relations  without  any  reason  therefor.  Thanks 
to  obligatory  arbitration.  States  could  more  easily  maintain  their  legitimate  claims, 
and  what  is  more  important  still,  could  more  easily  escape  from  the  unjustified 
demands. 

Obligatory  arbitration  would  be  of  invaluable  service  to  the  cause  of  uni- 
versal peace.  It  is  very  evident  that  the  questions  of  the  second  class,  to  which 
alone  this  method  is  applicable,  very  rarely  form  a  basis  for  war.  Nevertheless, 
frequent  disputes  between  States,  even  though  with  regard  only  to  questions 
of  the  second  class,  while  not  forming  a  direct  menace  to  the  maintenance  of  peace, 
nevertheless  disturb  the  friendly  relations  between  States  and  create  an  atmos- 
phere of  distrust  and  hostility  in  which  some  incident  or  other,  like  a  chance 
spark,  may  more  easily  cause  war  to  burst  forth.  Obligatory  arbitration,  resulting 
in  absolving  the  interested  States  from  all  responsibility  for  any  solution  of  the 
difference  existing  between  them,  seems  to  be  fitted  to  contribute  to  the  mainte- 
nance of  friendly  relations,  and  in  that  way  to  facilitate  the  peaceful  settlement  of 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  175 

the  most  serious  conflicts  which  may  arise  within  the  field  of  their  most  important 
mutual  interests. 

In  thus  recognizing  the  great  importance  of  obligatory  arbitration  it  is  above 
all  indispensable  to  set  forth  accurately  the  sphere  of  its  application;  we  must 
indicate  in  what  cases  obligatory  arbitration  is  applicable. 

The  grounds  of  international  disputes  are  very  numerous  and  infinitely 
varied;  nevertheless,  whatever  may  be  the  subject  of  dispute,  demands  made 
by  any  State  whatever  upon  another  State  can  be  listed  in  the  following  cate- 
gories : 

1.  One  State  demands  of  another  material  indemnity  for  damages  and  losses 
caused  to  it  or  to  its  nationals  by  the  acts  of  the  defendant  State  or  its  nationals, 
which  the  former  State  deems  contrary  to  law. 

2.  A  State  demands  that  another  shall  or  shall  not  exercise  certain  given 
attributes  of  the  sovereign  Power,  shall  or  shall  not  perform  certain  specified 
acts  which  do  not  concern  its  material  interests. 

So  far  as  disputes  of  the  first  category  are  concerned,  the  application  of  obli- 
gatory arbitration  is  always  possible  and  desirable.  Conflicts  of  this  nature  relate 
to  questions  of  law ;  they  do  not  concern  the  national  honor  of  States  or  the  vital 
interests  thereof,  it  being  understood  that  a  State  whose  national  honor  or  vital 
interests  had  been  attacked  would  not  of  course  limit  itself,  and  could  not  limit 
itself,  to  demanding  material  indemnity  for  damages  and  losses  suffered  by  it. 
War,  which  is  always  a  highly  regrettable  thing,  would  lose  its  significance  and 
would  have  no  moral  justification,  if  it  were  undertaken  for  a  dispute  arising 
in  regard  to  facts  of  little  real  importance,  such  as  accounts  to  be  settled  for 
material  damages  caused  to  one  State  by  acts  committed  by  another,  and  which 
the  former  did  not  consider  in  accordance  with  law.  But  the  more  impossible  war 
becomes  in  such  cases,  the  more  indispensable  it  is  to  recommend  obligatory 
arbitration  as  the  most  effective  means  of  action  for  a  peaceful  solution  of 
disputes  of  this  character. 

The  history  of  international  relations  proves  beyond  doubt  that  in  the  great 
majority  of  cases  claims  for  indemnity  for  damages  suffered  have  actually  been 
the  subject  of  arbitrations.  The  bases  of  these  demands  vary  a  great  deal. 
[126]  We  mention,  for  example,  the  violation  of  neutral  duties,^  violation  of  the 
rights  of  neutral  States,^  the  illegal  arrest  of  a  foreign  subject,^  losses 
caused  to  a  foreign  national  through  the  fault  of  a  State,*  seizure  of  private 
property  of  a  belligerent  upon  land,'^  illegal  seizure  of  vessels,"  violation  of  the 
right  of  fishery.'^ 

In  general,  whatever  may  be  the  bases  or  circumstances  of  the  dispute.  States 
cannot  find  any  difficulty  in  submitting  it  to  arbitration  if  it  deals  with  an  in- 
demnity for  damages  and  losses. 

It  would  seem  therefore  that  the  Conference  should  follow  the  same  path, 
by  declaring  arbitration  obligatory  for  the  examination  of  disputes  of  the  first 

^The  case  of  the  General  Armstrong  (1881)  ;  the  case  of  the  Alabama  (1872). 
2  Blockade  of  Portendik  (1843),  etc. 

8  The  case  of  Captain  White   (1864);  the  case  of  Dundonald   (1873),  etc. 
*Butterfield  case  (1888);  dispute  between  Mexico  and  the  United  States   (1872),  etc. 
"  Case  of  the  Macedonian. 

^  Seizure  of  the  vessels  Velos  Mariana,  Victoria,  and  Vigie  (1852)  ;  case  of  the  Phare 
(1879),  and  others. 

'Cases  of  fisheries  of  Terra  Nova  (1877),  etc. 


176  PLENARY  CONFERENCE 

class.  It  goes  without  saying  that  in  exceptional  cases  where  the  financial  ques- 
tion involved  is  of  a  very  important  character  from  the  point  of  view  of  the 
interests  of  the  State,  for  example,  in  case  it  concerned  the  bankruptcy  of  a  State, 
each  Power,  invoking  national  honor  or  vital  interests,  may  decline  to  resort  to 
arbitration  as  a  means  of  settling  the  difficulty. 

It  seems  that  obligatory  arbitration  could  not  and  should  not  be  applied  to 
disputes  of  the  second  class,  which  are  much  more  important  and  threatening  to 
the  general  peace.  In  this  category  are  included  disputes  of  all  kinds  arising  in 
connection  with  political  treaties  which  concern  the  vital  interests  and  national 
honor  of  States.  Obligatory  arbitration  in  these  cases  would  tie  the  hands  of 
the  interested  Power,  and  reduce  it  to  a  passive  state  when  dealing  with  questions 
upon  which  its  security  in  large  part  depends;  that  is  to  say,  questions  of  which 
none  but  the  sovereign  Power  can  be  the  judge.  In  introducing  international 
arbitration  into  the  international  life  of  States  we  must  proceed  with  extreme  care 
in  order  not  to  extend  unreasonably  its  sphere  of  application,  so  as  to  shake  the 
confidence  which  may  be  inspired  therein,  or  discredit  arbitration  in  the  eyes  of 
Governments  and  peoples. 

We  must  not  lose  sight  of  the  fact  that  each  State,  and  above  all  each  Great 
Power,  would  prefer  to  propose  the  abrogation  of  the  treaty  making  arbitration 
obligatory,  rather  than  to  submit  to  it  questions  which  absolutely  require  that  the 
decision  thereof  shall  be  made  by  the  sovereign  Power  acting  freely  and  without 
restriction.  In  all  cases,  in  the  interests  of  a  greater  development  of  the  insti- 
tution of  arbitration,  the  Conference  should  limit  its  application  to  a  specified 
number  of  legal  questions  arising  from  the  interpretation  of  existing  treaties  of 
no  political  significance.  These  treaties  should  be  specifically  noted  in  advance 
"by  the  Conference,  and  their  enumeration  can  be  completed  in  time  as  the  theory, 
:and  above  all  the  practice,  of  international  law  may  indicate. 

Among  the  treaties  the  interpretation  of  which  should  be  submitted  entirely 

.-and  unconditionally  to  obligatory  arbitration,  we  must  note  first  of  all  that 

•extensive  group  of  treaties  of  a  world-wide  character  which  have  formed  a  system 

•of  international  relationships — international  unions — to  serve  interests  which  are 

^Iso  international.     Such,   for  example,  are  conventions  regarding  postal  and 

telegraph  unions,  international  protection  of  literary  property,  etc.     In  time,  in 

-proportion  to  the  increasing  means  of  intercommunication  between  States,  a  great 

number  of  their  moral  and  material  interests  will  lose  their  exclusively  national 

•character,  and  will  be  raised  to  the  height  of  interests  of  the  whole  international 

■community.    To  provide  for  these  interests  by  the  efforts  and  with  the  means 

of  a  single  State  is  an  impossible  work.     And  that  is  why  each  year  adds  to 

the  number  of  treaties  of  a  world-wide  character,  uniting  many   States,  and 

■determining   the    ways    and    means    for    the    common    protection    of    common 

interests. 

Since  other  treaties,  as  a  general  rule,  are  only  artificial  settlements  of  op- 
posing interests,  treaties  of  a  universal  character  always  express  necessarily  the 
;agreement  upon  common  and  identic  interests.  That  is  the  reason  that  within  the 
scope  of  these  treaties  serious  disputes  incapable  of  settlement,  or  conflicts  of  a 
national  character  in  which  the  interests  of  one  are  absolutely  opposed  to  those 
■of  another,  never  arise  and  cannot  arise.  So  far  as  momentary  misunderstand- 
ings are  concerned — concerning  their  interpretation,  each  State  will  willingly 
•confide  the  solution  to  an  arbitral  tribunal,  it  being  understood  that  all  the  Powers 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  177 

have  an  equal  interest  in  maintaining  the  treaties  in  question,  which  serve 
[127]  as  bases  for  extensive  and  complex  systems  of  international  institutions 
and  regulations  which  are  the  only  means  of  serving  vital  and  permanent 
needs. 

It  should  be  noticed  that  the  first  attempt  to  introduce  obligatory  arbitra- 
tion into  international  practice  was  in  fact  made  in  a  treaty  of  a  universal  char- 
acter, that  relating  to  the  Postal  Union  of  1874;  Article  16  of  this  treaty  estab- 
lishes obligatory  arbitration  for  the  solution  of  all  the  differences  with  reference 
to  the  interpretation  and  application  of  the  treaty  in  question. 

The  Hague  Conference  would  seem  therefore  to  be  perfectly  justified  in 
extending  the  provisions  of  Article  16  of  the  Treaty  of  Berne  to  all  treaties  o£ 
a  universal  character  which  are  entirely  analogous  to  this  one. 

In  the  category  of  treaties  of  a  world-wide  character  susceptible  of  sub- 
mission to  obligatory  arbitration,  the  treaties  contained  in  the  following  two  sub- 
divisions may  be  included: 

1.  Treaties  concerning  international  protection  of  the  great  arteries  of 
world-wide  intercourse,  postal,  telegraph,  railroad  conventions ;  conventions  for 
the  protection  of  submarine  cables,  regulations  to  prevent  the  collision  of  vessels 
on  the  high  seas,  conventions  regarding  navigation  of  international  rivers  and 
interoceanic  canals. 

2.  Treaties  providing  for  the  international  protection  of  intellectual  and 
moral  interests,  whether  of  particular  States,  or,  in  general,  of  the  whole  inter- 
national community.  To  this  subdivision  belong  conventions  regarding  the 
protection  of  literary,  artistic,  and  musical  property,  conventions  for  the  protec- 
tion of  industrial  property  (trade  marks,  patents),  conventions  concerning  the 
use  of  weights  and  measures,  conventions  concerning  sanitation,  veterinary  sur- 
gery, and  measures  to  be  taken  to  prevent  phylloxera. 

Besides  treaties  of  a  world-wide  character,  arbitration  could  also  be  applied 
to  the  solution  of  differences  arising  from  the  interpretation  and  application  of 
treaties  concerning  particular  fields  of  private  international  law,  civil  and 
criminal. 

It  must  be  noted,  however,  that  the  most  important  questions  of  international 
law  are  actually  decided  by  the  particular  legislation  of  each  State. 

Because  of  the  difficulties  of  this  situation,  resulting  in  a  great  lack  of  defi- 
nition of  the  mutual  rights  and  duties  of  individuals  in  international  intercourse^ 
the  question  of  a  code  of  private  international  law  has  been  considered.  So  long 
as  this  question  is  not  definitely  decided,  either  by  the  conclusion  of  separate 
treaties  between  States,  or  by  the  conclusion  of  a  treaty  of  a  world-wide  char- 
acter, it  would  be  more  prudent  not  to  attempt  obligatory  arbitration  except  in 
questions  relating  to  the  right  of  succession  to  property,  which  is  already,  to  a. 
certain  degree,  sufficiently  regulated  by  international  treaties. 

So  far  as  questions  of  international  criminal  law  which  arise  with  regard  to- 
the  interpretation  of  treaties  concerning  cooperation  between  States  for  the 
administration  of  justice  are  concerned,  it  would  seem  that  these  questions,, 
being  exclusively  of  a  legal  character,  might  be  decided  by  obligatory  arbitration,, 
this  appearing  to  be  equally  possible  and  desirable  for  all  States. 

Finally,  with  a  view  to  preventing  those  disputes  and  misunderstandings 
which  are  so  frequent  among  States  with  regard  to  the  delimitation  of  boundaries, 
it  would  also  seem  most  opportune  to  confide  to  obligatory  arbitration  the  inter- 


178  PLENARY  CONFERENCE 

pretation  of  so-called  treaties  of  delimitation,  so  far  as  these  are  of  a  technical  and 
non-political  character. 

Such  are  the  limits  within  which  it  would  be  possible  and  desirable  to 
determine  the  sphere  of  action  of  obligatory  arbitration. 

We  may  permit  ourselves  to  believe  that  in  time  it  will  become  possible 
to  extend  obligatory  arbitration  to  cases  not  actually  provided  for  in  advance; 
but  even  within  the  limits  above  indicated,  this  means  of  action  will  be  a  great 
aid  to  the  success  of  the  great  principles  of  law  and  justice  in  the  international 
field. 

The  Peace  Conference,  by  recognizing  so  far  as  possible  the  use  of  arbitra- 
tion as  obligatory,  will  by  that  fact  approach  the  goal  which  was  set  up  before 
the  Governments  of  the  Great  Powers  at  Aix-la-Chapelle  in  1818.  It 
[128]  will  set  an  example  of  justice,  concord,  and  moderation;  it  will  sanction 
the  efforts  of  all  Governments  for  the  protection  of  peaceful  arts,  for  the 
development  of  the  eternal  prosperity  of  States  and  for  the  reestablishment  of 
the  high  ideals  of  religion  and  morality. 


III.— RUSSIAN  PROPOSALS  CONCERNING  THE  ARBITRAL  TRIBUNAL 
(a)  Articles  which  might  replace  Article  13 

Article  1 

With  a  view  to  unifying  international  arbitral  practice  as  much  as  possible, 

the  contracting  Powers  have  agreed  to  establish  for  a  period  of years,  an 

arbitral  tribunal,  to  which  the  cases  of  obligatory  arbitration  enumerated  in  Article 
10  will  be  submitted,  unless  the  interested  Powers  agree  upon  the  establishment 
of  a  special  arbitral  tribunal  for  the  settlement  of  the  dispute  which  has  arisen 
between  them. 

Litigant  Powers  may  also  resort  to  the  above-indicated  tribunal  in  all  cases 
of  voluntary  arbitration  if  a  special  agreement  concerning  the  same  is  made 
between  them. 

It  is  of  course  understood  that  all  Powers,  not  excepting  those  who  are  not 
contracting  Powers  nor  those  who  have  made  reservations,  can  submit  their  differ- 
ences to  this  tribunal  by  addressing  the  Permanent  Bureau  provided  for  in 
Article of  Appendix  A. 

Article  2 

The  organization  of  the  arbitral  tribunal  is  given  in  Appendix  A  of  the 
present  article. 

The  organization  of  arbitral  tribunals  established  by  special  agreements 
between  litigant  Powers,  as  well  as  the  rules  of  procedure  to  be  followed  during 
the  investigation  of  the  dispute  and  the  rendering  of  the  arbitral  award,  are  set 
forth  in  Appendix  B  (Arbitral  Code). 

The  provisions  contained  in  this  latter  Appendix  may  be  modified  by  a 
special  agreement  between  the  States  which  resort  to  arbitration. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  179 

(&)  Annex  to  the  Russian  Proposal 

In  case  Articles  1  and  2  are  accepted  it  would  be  necessary  to : 

(1)  Redraft  Appendix  A  mentioned  in  the  article. 

(2)  Introduce  corresponding  modifications  into  the  draft  of  the  arbitral 
code. 

(c)  Appendix  A,  mentioned  in  the  Additional  Article  2  of  the  Russian 

Proposal 

In  the  absence  of  a  special  compromis  the  arbitral  tribunal  provided  for  in 
Article  13  shall  be  formed  as  follows: 

Section  1.  The  contracting  Powers  establish  a  permanent  tribunal  for  the 
solution  of  the  international  disputes  which  are  referred  to  it  by  the  Powers  by 
virtue  of  Article  13  of  the  present  Convention. 

Section  2.  The  Conference  shall  designate  for  the  period  which  will  elapse 
before  the  meeting  of  another  Conference,  five  Powers,  each  one  of  which,  in 
case  of  a  request  for  arbitration,  shall  name  a  judge,  either  from  its  own 
nationals  or  from  others. 

The  judges  thus  named  form  the  arbitral  tribunal  with  power  to  consider 
the  case  which  has  arisen. 

Section  3.  If  one  or  more  Powers  among  those  in  litigation  are  not  rep- 
resented upon  the  arbitral  tribunal,  by  virtue  of  the  preceding  article,  each  of  the 
two  parties  in  litigation  shall  have  the  right  to  be  represented  thereon  by  a  person 
of  its  own  choice  acting  as  judge  and  having  the  same  rights  as  the  other  members 

of  the  tribunal. 
[129]   Section  4.     The  tribunal  shall  choose  its  president  from  among  its  mem- 
bers and  he,  in  case  of  equal  division  of  votes,  shall  have  the  deciding  vote. 

Section  5.  A  Permanent  Bureau  of  arbitration  shall  be  established  by  the 
five  Powers  who  are  designated  by  virtue  of  the  present  act  to  create  the  arbitral 
tribunal.  They  shall  draft  the  rules  governing  this  Bureau,  appoint  employees 
thereof,  provide  for  their  successors  in  case  of  necessity,  and  shall  fix  their 
salaries.  This  Bureau,  the  office  of  which  shall  be  at  The  Hague,  shall  consist  of 
a  secretary  general,  and  assistant  secretary,  a  secretary  to  act  as  archivist,  as  well 
as  the  rest  of  the  personnel  who  shall  be  appointed  by  the  secretary  general. 

Section  6.  The  expenses  of  maintaining  this  Bureau  shall  be  divided  among 
the  States  in  the  proportions  established  for  the  International  Postal  Bureau. 

Section  7.  The  Bureau  shall  make  an  annual  report  of  its  business  to  the 
five  Powers  which  appoint  it,  and  the  latter  shall  transmit  this  report  to  the  other 
Powers. 

Section  8.  The  Powers  between  which  a  dispute  has  arisen  shall  address 
the  Bureau  and  furnish  it  with  the  necessary  documents.  The  Bureau  shall  advise 
the  five  Powers  above  mentioned  and  they  shall  immediately  create  the  tribunal. 
This  tribunal  shall  meet  ordinarily  at  The  Hague ;  it  may  also  meet  in  another 
city,  if  an  agreement  to  this  effect  is  reached  by  the  interested  States. 

Section  9.  During  the  work  of  the  tribunal  the  Bureau  shall  furnish  the 
secretarial  staflF.  It  shall  follow  the  tribunal  in  case  of  change  of  meeting-place. 
The  archives  of  the  international  tribunal  shall  be  deposited  with  the  Bureau. 

Section  10.  Procedure  before  the  tribunal  above-mentioned  shall  be  gov- 
erned by  the  provisions  of  the  arbitral  code  [below]. 


180  PLENARY  CONFERENCE 

IV.— DRAFT  OF  ARBITRAL  CODE  PROPOSED  BY  THE  RUSSIAN  DELEGATION 

Article  1 

The  signatory  Powers  have  approved  the  principles  and  rules  below  for 
arbitral  procedure  between  nations,  except  for  modifications  which  may  be 
introduced  in  each  special  case  by  common  agreement  between  litigant  Govern- 
ments. 

Article  2 

The  interested  States,  having  accepted  arbitration,  sign  a  special  act  (com- 
promis)  in  which  the  questions  submitted  to  the  decision  of  the  arbitrator  are 
clearly  defined  as  well  as  all  of  the  facts  and  legal  points  involved  therein,  and 
in  which  is  found  a  formal  confirmation  of  the  agreement  of  the  two  contracting 
Powers  to  submit  in  good  faith  and  without  appeal  to  the  arbitral  decision  which 
is  to  be  rendered. 

Article  3 

The  compromis  thus  freely  concluded  by  the  States  may  adopt  arbitration 
either  for  all  disputes  arising  between  them  or  for  disputes  of  a  special  class. 

Article  4 

The  interested  Governments  may  entrust  the  duties  of  arbitrator  to  the 
sovereign  or  the  chief  of  State  of  a  third  Power  when  the  latter  agrees  thereto. 
They  may  also  entrust  these  duties  either  to  a  single  person  chosen  by  them,  or  to 
an  arbitral  tribunal  formed  for  this  purpose. 

In  the  latter  case  and  in  view  of  the  importance  of  the  dispute  the  arbitral 
tribunal  may  be  formed  as  follows :  each  contracting  party  chooses  two  arbitrators 
and  all  the  arbitrators  together  choose  the  umpire  who  is  de  jure  president  of  the 
arbitral  tribunal. 

In  case  of  equal  voting  the  litigant  Governments  shall  address  a  third 
Power  or  a  third  person  by  common  agreement  and  the  latter  shall  name  the 
umpire. 

Article  5 

If  the  litigant  parties  do  not  arrive  at  an  agreement  upon  the  choice  of  the 
[130]  third  Government  or  person  mentioned  in  the  preceding  article,  each  of 

the  parties  shall  name  a  Power  not  involved  in  the  dispute  so  that  the 
Powers  thus  chosen  by  the  litigant  Powers  may  designate  an  umpire  by  common 
agreement. 

Article  6 

The  disability  or  reasonable  challenge,  even  if  of  but  one  of  the  above 
arbitrators,  as  well  as  the  refusal  to  accept  the  office  of  arbitrator  after  the 
acceptance  or  death  of  an  arbitrator  already  chosen,  invalidates  the  entire  com- 
promis except  in  cases  where  these  conditions  have  been  foreseen  and  provided 
for  in  advance  by  common  agreement  between  the  contracting  parties. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  181 

Article  7 

The  meeting-place  of  the  arbitral  tribunal  shall  be  fixed  either  by  the  con- 
tracting States,  or  by  the  members  of  the  tribunal  themselves.  A  change  from 
this  meeting-place  of  the  tribunal  is  not  permissible  except  by  a  new  agreement 
between  the  interested  Governments,  or  in  case  of  force  majeure,  upon  the  initia- 
tive of  the  tribunal  itself. 

Article  8 

The  litigant  Powers  have  the  right  to  appoint  delegates  or  special  agents 
attached  to  the  arbitral  tribunal  for  the  purpose  of  serving  as  intermediaries 
between  the  tribunal  and  the  interested  Governments. 

Besides  these  agents  the  above-mentioned  Governments  are  authorized  to 
commit  the  defense  of  their  rights  and  interests  before  the  arbitral  tribunal  to 
counsel  or  advocates  appointed  by  them  for  this  purpose. 

Article  9 

The  arbitral  tribunal  decides  what  language  shall  be  used  in  its  deliberations 
and  arguments  of  the  parties. 

Article  10 

Arbitral  procedure  should  generally  cover  two  phases,  preliminary  and  final. 

The  former  consists  in  the  communication  to  the  members  of  the  arbitral 
tribunal  by  the  agents  of  the  contracting  parties  of  all  acts,  documents,  and 
arguments,  printed  or  written,  regarding  the  questions  in  litigation. 

The  second — final  or  oral — consists  of  the  debates  before  the  arbitral 
tribunal. 

Article  11 

After  the  close  of  the  preliminary  procedure  the  debates  open  before  the 
arbitral  tribunal  and  are  under  the  direction  of  the  president. 

Minutes  of  all  of  these  deliberations  are  drawn  up  by  secretaries  appointed 
by  the  president  of  the  tribunal.    These  minutes  are  of  legal  force. 

Article  12 

The  preliminary  procedure  being  concluded  the  arbitral  tribunal  has  the  right 
to  refuse  all  new  acts  and  documents  which  the  representatives  of  the  parties 
may  desire  to  submit  to  it. 

Article  13 

The  arbitral  tribunal,  however,  is  always  absolutely  free  to  take  into  con- 
sideration new  papers  or  documents  which  the  delegates  or  counsel  of  the  two 
litigant  Governments  have  made  use  of  during  their  explanations  before  the 
tribunal. 

The  latter  has  the  right  to  require  the  production  of  these  papers  or 
documents  and  to  make  them  known  to  the  opposite  party. 

Article  14 

The  arbitral  tribunal  besides  has  the  right  to  require  the  agents  of  the  parties 
to  present  all  the  acts  or  explanations  which  it  may  need. 


182  PLENARY  CONFERENCE 

Article  15 

The  agents  and  counsel  of  litigant  Governments  are  authorized  to  present 
[131]  orally  to  the  arbitral  tribunal  all  the  explanations  or  proofs  which  will  aid 
the  defense  of  the  cause. 

Article  16 

These  agents  and  counsel  have  also  the  right  to  present  motions  to  the  tribunal 
concerning  the  matters  to  be  discussed. 

The  decisions  of  the  tribunal  upon  these  motions  are  final  and  cannot  form 
the  subject  of  any  discussion. 

Article  17 

The  members  of  the  arbitral  tribunal  are  entitled  to  put  questions  to  the 
agents  or  counsel  of  the  contracting  parties  or  to  ask  them  for  explanations  on 
doubtful  points. 

Neither  the  questions  put  nor  the  remarks  made  by  the  members  of  the 
tribunal  during  the  deliberations  can  be  regarded  as  expressions  of  opinion  by 
the  tribunal  in  general  or  by  its  members  in  particular, 

Article  18 

The  arbitral  tribunal  alone  is  authorized  to  determine  its  competence  in 
interpreting  the  clauses  of  the  compromis,  and  according  to  the  principles  of 
international  law  as  well  as  the  provisions  of  special  treaties  which  may  be  invoked 
in  the  case. 

Article  19 

The  arbitral  tribunal  is  entitled  to  issue  rules  of  procedure  for  the  conduct 
of  the  case,  to  decide  the  forms  and  time  in  which  each  party  must  conclude  its 
arguments  and  to  pass  upon  the  interpretation  of  the  documents  produced  and 
communicated  to  the  two  parties. 

Article  20 
When  the  agents  and  counsel  of  the  parties  have  submitted  all  the  explana- 
tions and  evidence  in  defense  of  their  case,  the  president  of  the  arbitral  tribunal 
shall  pronounce  the  discussion  closed. 

Article  21 

The  deliberations  of  the  arbitral  tribunal  on  the  merits  of  the  case  take  place 
in  private. 

Every  decision,  whether  final  or  interlocutory,  is  taken  by  a  majority  of  the 
members  present. 

The  refusal  of  a  member  of  the  tribunal  to  vote  must  be  recorded  in  the 
minutes. 

Article  22 

The  award  given  by  a  majority  of  votes  should  be  drawn  up  in  writing  and 
signed  by  each  member  of  the  arbitral  tribunal. 

Those  members  who  are  in  the  minority  state  their  dissent  when  signing. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  183 

Article  23 
The  arbitral  award  is  solemnly  read  out  at  a  public  sitting  of  the  tribunal 
and  in  the  presence  of  the  agents  and  counsel  of  the  Governments  at  variance. 

Article  24 
The  arbitral  award,  duly  pronounced  and  notified  to  the  agents  of  the  Gov- 
ernments at  variance,  settles  the  dispute  between  them  definitively  and  without 
appeal,  and  closes  all  of  the  arbitral  procedure  instituted  by  the  compromis. 

Article  25 
Each  party  shall  pay  its  own  expenses  and  one-half  of  the  expenses  of 
the  arbitral  tribunal  without  prejudice  to  the  decision  of  the  tribunal  regarding 
the  indemnity  that  one  or  the  other  of  the  parties  may  be  ordered  to  pay. 

[132]  Article  26 

The  arbitral  award  is  void  in  case  of  a  void  compromis  or  exceeding  of  power, 
or  of  corruption  proved  against  one  of  the  arbitrators. 

The  procedure  above  indicated  concerning  the  arbitral  tribunal  and  beginning 
with  Section  7  commencing  with  the  words  "  the  seat  of  the  arbitral  tribunal " 
also  applies  in  case  arbitration  is  entrusted  to  a  single  person  chosen  by  the 
interested  Governments. 

In  case  a  sovereign  or  head  of  a  State  should  reserve  the  right  to  decide 
personally  as  arbitrator,  the  procedure  to  be  followed  should  be  fixed  by  the 
sovereign  or  the  head  of  the  State  himself. 

v.— DOCUMENT  PRESENTED  BY  MR.  MARTENS 

Arbitration  between  the  Governments  of  Her  Britannic  Majesty  and 
THE  United  States  of  Venezuela 

rules  of  procedure 

The  tribunal  of  arbitration,  established  in  virtue  of  the  Treaty  of  Washing- 
ton of  February  2,  1897,  to  decide  the  boundary  claims  between  Great  Britain 
and  the  United  States  of  Venezuela,  has  adopted  the  following  rules  of  procedure 
for  its  meetings. 

1 

At  the  opening  of  its  meetings  the  tribunal  of  arbitration  shall,  upon  the 
proposal  of  the  president,  appoint  secretaries,  who  shall  be  charged  with  drawing 
up  full  reports  of  all  its  proceedings.  The  agents  of  the  two  Governments  being 
in  dispute  have  the  right  to  appoint  their  special  secretaries  for  the  purpose  of 
drawing  up  reports  of  all  the  proceedings  of  the  tribunal,  except  the  deliberations 
of  the  tribunal  with  closed  doors. 

2 

The  reports  of  the  proceedings  of  the  tribunal  of  arbitration  shall  be  signed 
by  the  president,  the  two  agents  of  the  Governments  in  dispute,  and  countersigned 
by  the  principal  secretary.  These  reports  alone  are  authoritative  and  have  full 
legal  force. 


Ig4  PLENARY  CONFERENCE 

3 

At  all  debates  and  deliberations  of  the  tribunal  of  arbitration  the  proceedings 
shall  be  carried  on  in  French  or  in  English.  The  final  report  of  proceedings  shall 
be  drawn  up  in  three  languages :  English,  French,  and  Spanish. 

4 
The  agents  of  the  two  Governments  in  dispute  are  required  to  communicate 
to  the  tribunal  the  names  of  their  counsel  and  special  secretaries. 

5 
The  public  shall  be  admitted  to  the  public  meetings  of  the  tribunal  of  arbi- 
tration only  on  presentation  of  tickets  to  be  obtained  from  the  secretaries  of  the 
tribunal. 

6 

The  president  of  the  tribunal  of  arbitration  has  the  direction  of  all  the  debates 
and  deliberations  before  the  tribunal. 

7 
In  case  of  the  temporary  illness  of  any  one  of  the  members  of  the  tribunal  of 
arbitration  or  of  the  agents  of  the  Government  of  the  United  States  of  Venezuela 
or  of  Great  Britain,  the  meetings  of  the  tribunal  may  be  suspended  for  a  short 
period  of  time.  In  case  of  the  long  or  serious  illness  of  any  one  of  the  members 
of  the  tribunal,  the  second  article  of  the  Treaty  of  Washington  of  February  2, 
1897,  shall  be  put  in  force. 

[133]  8 

The  preliminary  proceedings  of  the  tribunal  of  arbitration,  consisting  in  the 
communication  by  the  two  Governments  in  dispute  of  all  written  acts  and  docu- 
ments relative  to  the  present  trial  being  closed,  the  tribunal  of  arbitration,  by 
virtue  of  the  Treaty  of  Washington,  shall  have  the  right  to  refuse  to  receive  any 
new  acts  or  documents  which  the  representatives  of  the  two  above-mentioned 
Governments  may  wish  to  present. 

9 

At  the  same  time  the  tribunal  of  arbitration  has  full  power  and  liberty  to 
take  into  consideration  any  new  acts  or  documents  to  which  the  agents  or  counsel 
of  the  two  Governments  in  dispute  may  invite  the  attention  of  the  tribunal.  It 
has  further  the  right  to  demand  the  production  of  these  acts  or  documents  and 
to  communicate  them  to  the  party  opposed. 

10 

The  tribunal  of  arbitration  has  the  right  to  require  the  agents  of  the  two 
Governments  in  dispute  to  produce  any  act  or  document  and  to  make  any  explana- 
tions it  may  deem  necessary. 

11 

The  agents  or  counsel  of  the  two  Governments  in  dispute  have  full  right  to 
produce  before  the  tribunal  of  arbitration  any  oral  explanations  they  may  con- 
sider necessary  to  the  due  development  of  their  case. 


SEVENTH  MEETING,  JULY  25,  1899 :  ANNEXES  185 

12 

The  aforesaid  agents  or  counsel  have  equally  the  right  to  submit  to  the 
tribunal  of  arbitration  any  motion  or  amendment  to  the  subject  under  discussion. 
All  decisions  arrived  at  by  the  tribunal  on  such  motions  or  amendments  shall  be 
regarded  as  final  and  not  admitting  any  further  debate. 

13 

The  members  of  the  tribunal  of  arbitration  have  the  right  to  put  questions  to 
the  agents  or  counsel  of  the  two  Governments  in  dispute,  or  to  demand  further 
and  more  detailed  explanations  on  all  doubtful  points.  Neither  the  questions  that 
may  be  put  nor  the  observations  made  by  members  of  the  tribunal  shall  be  regarded 
as  expressing  the  views  of  the  tribunal  in  general,  or  of  its  members  in  particular. 

14 

The  tribunal  of  arbitration  is  authorized  to  determine  its  competency  on  any 
point  exclusively  on  the  basis  of  the  Treaty  of  Washington  of  February  2,  1897, 
and  in  accordance  with  the  principles  of  international  law. 

15 

After  the  agents  or  counsel  of  the  two  Governments  in  dispute  have  laid 
before  the  tribunal  of  arbitration  all  their  explanations  and  proofs,  the  president 
shall  declare  the  debates  to  be  closed. 

16 
The  tribunal  of  arbitration  may,  during  the  debates  before  it,  discuss  any 
question  with  closed  doors. 

17 

In  matters  of  procedure  all  decisions  are  taken  by  the  majority  of  votes  of 
members  present. 

18 

The  failure  of  any  one  of  the  members  of  the  tribunal  of  arbitration  to  take 
part  in  the  voting  shall  be  duly  noted  in  the  report  of  the  proceedings. 

[1341  19 

The  final  award,  decided  by  the  majority  of  votes,  shall  be  drawn  up  in  Eng- 
lish, French,  and  Spanish. 

Translations  in  French  and  "Spanish  shall  be  certified  by  the  agents  of  the 
two  Governments. 

20 
The  refusal,  if  any,  on  the  part  of  the  minority  of  members  of  the  tribunal 
to  sign  the  award  shall  be  duly  noted  in  the  report  of  the  proceedings. 

21 

The  final  award  shall  be  solemnly  read  in  public  meeting  of  the  tribunal  of 
arbitration  in  presence  of  the  members.  The  agents  and  counsel  of  the  two 
Governments  being  in  dispute  shall  be  invited  to  assist  at  this  public  meeting. 


186  PLENARY  CONFERENCE 

22 

Three  copies  of  the  final  award  shall  be  drawn  up,  and,  of  these  copies,  one 
shall  be  presented  to  the  agent  of  the  Government  of  Great  Britain,  to  be  com- 
municated to  his  Government,  and  the  second  shall  be  presented  to  the  agent  of 
the  Government  of  the  United  States  of  Venezuela,  to  be  communicated  to  his 
Government. 

The  third  copy,  in  French,  shall  be  communicated  to  the  French  Government 
for  the  archives  of  the  French  Republic. 

23 

Three  duplicates  of  the  final  award  shall  be  signed  by  the  president  and  all 
the  members  of  the  tribunal  of  arbitration.  Those  of  its  members  who  have  voted 
with  the  minority  shall,  if  they  see  fit,  state  in  such  duplicate  their  dissent 
therefrom. 

24 

The  final  award,  duly  declared  and  communicated  to  the  agents  of  the  two 
Governments  being  in  dispute,  shall  be  deemed  to  decide  definitely  the  points  in 
dispute  between  the  Governments  of  Great  Britain  and  of  the  United  States  of 
Venezuela,  concerning  the  lines  of  their  respective  frontiers,  and  shall  finally  close 
all  proceedings  of  the  tribunal  of  arbitration  established  by  the  Treaty  of  Wash- 
ington, February  2,  1897. 


ANNEX  B.    DOCUMENTS  PRODUCED  BY  THE  BRITISH 

DELEGATION 

PERMANENT  COURT  OF  ARBITRATION 

(a)  Proposition  of  his  Excellency  Sir  Julian  Pauncefote 

1 

With  a  view  to  facilitate  immediate  recourse  to  arbitration  by  States  which 
may  fail  to  adjust  by  diplomatic  negotiations  differences  arising  between  them,  the 
signatory  Powers  agree  to  organize  in  manner  hereinafter  mentioned,  a  permanent 
"  tribunal  of  international  arbitration  "  which  shall  be  accessible  at  all  times  and 
which  shall  be  governed  by  the  code  of  arbitration  provided  by  this  Convention, 
so  far  as  the  same  may  be  applicable  and  consistent  with  any  special  stipulations 
agreed  to  between  the  contesting  parties. 


For  that  purpose  a  permanent  central  office  shall  be  established  at   .    .    ., 
where  the  records  of  the  tribunal  shall  be  preserved  and  its  official  business 
[135]   shall  be  transacted. 

A  permanent  secretary,  an  archivist,  and  a  suitable  staff  shall  be  appointed 
who  shall  reside  on  the  spot.  This  office  shall  be  the  medium  of  communication 
for  the  assembling  of  the  tribunal  at  the  request  of  the  contesting  parties. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  187 

3 

Each  of  the  signatory  Powers  shall  transmit  to  the  others  the  names  of  two 
persons  of  its  nationality  who  shall  be  recognized  in  their  own  country  as  jurists 
or  publicists  of  high  character  for  learning  and  integrity  and  who  shall  be  willing 
and  qualified  in  all  respects  to  act  as  arbitrators.  The  persons  so  nominated  shall 
be  members  of  the  tribunal,  and  a  list  of  their  names  shall  be  recorded  in  the 
central  office.  In  the  event  of  any  vacancy  occurring  in  the  said  list  from  death, 
retirement,  or  any  other  cause  whatever,  such  vacancy  shall  be  filled  up  in  the 
manner  hereinbefore  provided,  with  respect  to  the  original  appointment. 

4 

Any  of  the  signatory  Powers  desiring  to  have  recourse  to  the  tribunal  for  the 
peaceful  settlement  of  differences  which  may  arise  between  them,  shall  notify  such 
desire  to  the  secretary  of  the  central  office,  who  shall  thereupon  furnish  such 
Powers  with  a  list  of  the  members  of  the  tribunal  from  which  they  shall  select 
such  number  of  arbiters  as  may  be  stipulated  for  in  the  arbitration  agreement. 
They  may  besides,  if  they  think  fit,  adjoin  to  them  any  other  person,  although 
his  name  shall  not  appear  on  the  list.  The  persons  so  selected  shall  constitute  the 
tribunal  for  the  purposes  of  such  arbitration,  and  shall  assemble  at  such  date  as 
may  be  fixed  by  the  litigants. 

The  tribunal  shall  ordinarily  hold  its  sessions  at  .  .  . ,  but  it  shall  have  power 
to  fix  its  place  of  session  elsewhere  and  to  change  the  same  from  time  to  time 
as  circumstances  and  its  own  convenience  or  that  of  the  litigants  may  suggest. 

5 
Any  Power,  although  not  a  signatory  Power,  may  have  recourse  to  the 
tribunal  on  such  terms  as  shall  be  prescribed  by  the  regulations. 

6 

The  Government  of  ...  is  charged  by  the  signatory  Powers  to  establish 
on  their  behalf  as  soon  as  possible  after  the  conclusion  of  this  Convention  a 
Permanent  Council  of  Administration  at  .  .  .  to  be  composed  of  five  members 
and  a  secretary. 

The  Council  shall  organize  and  establish  the  central  office,  which  shall  be 
under  its  control  and  direction.  It  shall  make  such  rules  and  regulations  from 
time  to  time  as  may  be  necessary  for  the  proper  discharge  of  the  functions  of 
the  office.  It  shall  dispose  of  all  questions  which  may  arise  in  relation  to  the 
working  of  the  tribunal  or  which  may  be  referred  to  it  by  the  central  office.  It 
shall  have  absolute  power  as  regards  the  appointment,  suspension,  or  dismissal 
of  all  employees,  and  shall  fix  their  salaries  and  control  the  general  expenditure. 

The  Council  shall  elect  its  president,  who  shall  have  a  casting  vote.  Three 
members  shall  form  a  quorum.  The  decisions  of  the  Council  shall  be  governed 
by  a  majority  of  votes. 

The  remuneration  of  the  members  shall  be  fixed  from  time  to  time  by  accord 
between  the  signatory  Powers. 

7 

The  signatory  Powers  agree  to  share  among  them  the  expenses  attending  the 
institution  and  maintenance  of  the  central  office  and  of  the  Council  of  Admin- 
istration. 


188  PLENARY  CONFERENCE 

The  expenses  of  and  incident  to  every  arbitration,  including  the  remuneration 
of  the  arbiters,  shall  be  equally  borne  by  the  contesting  Powers. 

(b)  New  proposition  of  his  Excellency  Sir  Julian  Pauncefote  concerning 
the  Permanent  Council 

New  Article  6 

A  permanent  Council  composed  of  the  representatives  of  the  signatory 
Powers  residing  at  The  Hague  and  of  the  Netherland  Minister  for  Foreign 
Affairs  shall  be  instituted  in  this  town  as  soon  as  possible  after  the  ratification 
of  the  present  Convention.  This  Council  shall  have  the  duty  of  establishing  and 
organizing  the  central  Bureau,  which  shall  be  under  its  direction  and  control.  It 
shall  proceed  to  the  installation  of  the  tribunal ;  it  shall  issue  from  time  to  time 
the  necessary  rules  for  the  proper  operation  of  the  central  Bureau.     Likewise  it 

shall  decide  all  questions  which  may  arise  with  regard  to  the  operations  of 
[136]  the  tribunal,  or  refer  the  same  to  the  signatory  Powers.     It  shall  have 

entire  control  over  the  appointment,  suspension,  or  dismissal  of  the  officers 
and  employees  of  the  central  Bureau.  It  shall  fix  the  fees  and  salaries ;  it  shall 
control  the  general  expenses.  The  presence  of  five  members  at  a  meeting,  duly 
called,  is  sufficient  to  render  the  discussions  valid,  and  decisions  shall  be  made 
by  a  majority  vote. 


A 


ANNEX  C.    DOCUMENTS  PRODUCED  BY  THE  AMERICAN 

DELEGATION 

I.— SPECIAL  MEDIATION 

Proposition  of  Mr.  Holls,  delegate  of  the  United  States  of  America 

Article  7 

The  signatory  Powers  have  reached  an  agreement  in  recommending  the 
application,  when  circumstances  allow,  of  special  mediation  in  the  following  form : 

In  case  of  a  serious  difference  threatening  the  peace,  the  States  in  dispute 
choose  respectively  a  neutral  Power  with  the  mission  of  entering  into  direct  com- 
munication with  the  object  of  preventing  the  rupture  of  pacific  relations. 

For  a  period  of  twenty  days,  unless  another  period  is  stipulated,  the  question 
in  dispute  is  regarded  as  referred  exclusively  to  these  Powers.  They  must  use 
their  best  efforts  to  settle  the  difference  and  to  restore  the  status  quo  ante  as  soon 
as  possible. 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are  charged 
with  the  joint  task  of  taking  advantage  of  any  opportunity  to  restore  peace. 

II.— PROJECT  FOR  AN  INTERNATIONAL  TRIBUNAL— PROPOSITION  OF  THE 
COMMISSION  OF  THE  UNITED  STATES  OF  AMERICA  SUBMITTED  TO 
THE  COMMITTEE  OF  EXAMINATION 

Resolved,  That  in  order  to  aid  in  the  prevention  of  armed  conflicts  by  pacific 
means,  the  representatives  of  the  sovereign  Powers  assembled  together  in  this 
Conference  be,  and  hereby  are,  requested  to  propose  to  their  respective  Govern- 
ments a  series  of  negotiations  for  the  adoption  of  a  general  treaty  having  for  its 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  189 

object  the  following  plan,  with  such  modifications  as  may  be  essential  to  secure  the 
adhesion  of  at  least  nine  sovereign  Powers, 

1.  The  tribunal  shall  be  composed  of  judges  chosen  on  account  of  their 
personal  integrity  and  learning  in  international  law  by  a  majority  of  the  members 
of  the  highest  court  now  existing  in  each  of  the  adhering  States,  one  from  each 
sovereign  State  participating  in  the  treaty,  and  shall  hold  office  until  their  suc- 
cessors are  appointed  by  the  same  body. 

2.  The  tribunal  shall  meet  for  organization  at  a  time  and  place  to  be  agreed 
upon  by  the  several  Governments,  but  not  later  than  six  months  after  the  general 
treaty  shall  be  ratified  by  nine  Powers,  and  shall  organize  itself  by  the  appointment 
of  a  permanent  clerk  and  such  other  officers  as  may  be  found  necessary,  but  with- 
out conferring  any  distinction  upon  its  own  members.  The  tribunal  shall  be 
empowered  to  fix  its  place  of  sessions  and  to  change  the  same  from  time  to  time 
as  the  interests  of  justice  or  the  convenience  of  the  litigants  may  seem  to  require, 

and  fix  its  own  rules  of  procedure. 
[137]  3.  The  contracting  nations  will  mutually  agree  to  submit  to  the  inter- 
national tribunal  all  questions  of  disagreement  between  them,  excepting 
such  as  may  relate  to  or  involve  their  political  independence  or  territorial  integrity. 
Questions  of  disagreement,  with  the  aforesaid  exceptions,  arising  between  an 
adherent  State  and  a  non-adherent  State,  or  between  two  sovereign  States  not 
adherent  to  the  treaty,  may,  with  the  consent  of  both  parties  in  dispute,  be  sub- 
mitted to  the  international  tribunal  for  adjudication,  upon  the  condition  expressed 
in  Article  6. 

4.  The  tribunal  shall  be  of  a  permanent  character  and  shall  be  always  open 
for  the  filing  of  cases  and  counter-cases,  either  by  the  contracting  nations  or  by 
others  that  may  choose  to  submit  them,  and  all  cases  and  counter-cases,  with  the 
testimony  and  arguments  by  which  they  are  to  be  supported  or  answered,  are  to 
be  in  writing.  All  cases,  counter-cases,  evidence,  arguments,  and  opinions  ex- 
pressing judgment  are  to  be  accessible,  after  a  decision  is  rendered,  to  all  who 
desire  to  pay  the  necessary  charges  for  transcription. 

5.  A  bench  of  judges  for  each  particular  case  shall  consist  of  not  less  than 
three  nor  more  than  seven,  as  may  be  deemed  expedient,  appointed  by  the  unani- 
mous consent  of  the  tribunal,  and  not  to  include  a  member  who  is  either  a  native, 
subject,  or  citizen  of  the  State  whose  interests  are  in  litigation  in  that  case. 

6.  The  general  expenses  of  the  tribunal  are  to  be  divided  equally  between 
the  adherent  Powers,  but  those  arising  from  each  particular  case  shall  be  provided 
for  as  may  be  directed  by  the  tribunal.  The  presentation  of  a  case  wherein  one 
or  both  of  the  parties  may  be  a  non-adherent  State  shall  be  admitted  only  upon 
condition  of  a  mutual  agreement  that  the  State  against  which  judgment  may  be 
found  shall  pay,  in  addition  to  the  judgment,  a  sum  to  be  fixed  by  the  tribunal 
for  the  expenses  of  the  adjudication. 

7.  Every  litigant  before  the  international  tribunal  shall  have  the  right  to 
make  an  appeal  for  reexamination  of  a  case  within  three  months  after  notification 
of  the  decision,  upon  presentation  of  evidence  that  the  judgment  contains  a  sub- 
stantial error  of  fact  or  law. 

8.  This  treaty  shall  become  operative  when  nine  sovereign  States,  whereof 
at  least  six  shall  have  taken  part  in  the  Conference  of  The  Hague,  shall  have 
ratified  its  provisions.  #^ 


190  PLENARY  CONFERENCE 

ANNEX  D.    DOCUMENT  PRODUCED  BY  THE  ITALIAN 

DELEGATION 

AMENDMENT  TO  THE  RUSSIAN  DRAFT  REGARDING  MEDIATION  AND 
ARBITRATION  SUBMITTED  BY  HIS  EXCELLENCY  COUNT  NIGRA 

With  the  object  of  preventing  or  putting  an  end  to  international  conflicts,  the 
Peace  Conference,  assembled  at  The  Hague,  has  resolved  to  submit  to  the  Govern- 
ments there  represented  the  following  articles  which  are  intended  to  be  made  an 
international  agreement. 

Article  1 

In  case  a  conflict  between  two  or  more  Powers  is  imminent,  and  after  every 
attempt  at  reconciliation  by  means  of  indirect  negotiations  has  failed,  the  litigant 
parties  are  obliged  to  resort  to  mediation  or  arbitration  in  the  cases  indicated  in 
the  present  act. 

Article  2 

In  all  other  cases  mediation  or  arbitration  are  recommended  by  the  signatory 
Powers ;  but  remain  voluntary. 

[138]  Article  3 

In  any  case,  and  even  during  hostilities,  each  one  of  the  Powers  signatory  to 
the  present  act,  and  not  involved  in  the  dispute,  has  the  right  to  oflFer  to  the  con- 
tending Powers  its  good  offices  and  mediation,  or  to  propose  to  them  to  resort  to 
the  mediation  of  another  Power  which  is  also  neutral,  or  to  arbitration. 

This  ofTer  or  this  proposal  cannot  be  considered  by  one  or  the  other  of  the 
litigant  parties  as  an  unfriendly  act,  even  in  case  mediation  and  arbitration,  not 
being  obligatory,  are  rejected. 

Article  4 

A  request  for,  or  offer  of,  mediation  has  priority  over  arbitration. 

But  arbitration  can  or  should  be  proposed  according  to  the  circumstances,  not 
only  when  there  is  no  demand  for  or  offer  of  mediation,  but  also  when  mediation 
would  have  been  rejected  or  would  not  have  brought  about  reconciliation. 

Article  5 

A  proposal  for  mediation  or  arbitration,  so  long  as  it  is  not  formally  accepted 
by  all  the  litigant  parties,  cannot,  except  where  there  is  a  contrary  agreement, 
interrupt,  delay,  or  hinder  mobilization  or  other  preparatory  measures,  nor 
military  operations  then  taking  place. 

Article  6 
Recourse  to  mediation  or  arbitration  according  to  Article  1  is  obligatory : 

(1)    

(2)   


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  191 

ANNEX  E.i  GENERAL  SURVEY  OF  THE  CLAUSES  OF  MEDIATION 
AND  ARBITRATION  AFFECTING  THE  POWERS  REPRESENTED 
AT  THE  CONFERENCE 

It  is  important  to  distinguish  provisions  having  a  general  character,  that  is, 
common  to  all  the  Powers  or  to  a  considerable  group  of  them,  from  those  having 
the  character  of  special  conventional  law  between  the  States. 

Section  1. — Provisions  of  a  General  Character 
The  principal  provisions  to  be  noticed  in  this  class  are  the  following : 

1.  General  van  concerning  recourse  to  the  good  offices  of  a  friendly  Power 
contained  in  Protocol  No.  23  of  the  Congress  of  1856. 

This  vosu  was  expressed  in  the  following  circumstances: 
The  Earl  of  Clarendon  having  asked  permission  to  lay  before  the  Congress 
[139]  a  proposition,  which  it  appears  to  him  ought  to  be  favorably  received,  states 
that  the  calamities  of  war  are  still  too  present  to  every  mind  not  to  make  it 
desirable  to  seek  out  every  expedient  calculated  to  prevent  their  return;  that  a 
stipulation  had  been  inserted  in  Article  8  of  the  treaty  of  peace,  recommending 
that  in  case  of  difference  between  the  Porte  and  one  or  more  of  the  other  signing 
Powers,  recourse  should  be  had  to  the  mediation  of  a  friendly  State  before 
resorting  to  force. 

The  first  plenipotentiary  of  Great  Britain  conceives  that  this  happy  innovation 
might  receive  a  more  general  application,  and  thus  become  a  barrier  against  con- 
flicts, which  frequently  break  forth  only  because  it  is  not  always  possible  to  enter 
into  explanation  and  to  come  to  an  understanding. 

He  proposes,  therefore,  to  agree  upon  a  resolution  calculated  to  afford  for  the 
future  to  the  maintenance  of  peace  that  chance  of  duration,  without  prejudice, 
however,  to  the  independence  of  Governments. 

Count  Walewski  declares  himself  authorized  to  support  the  idea  expressed 
by  the  first  plenipotentiary  of  Great  Britain ;  he  gives  the  assurance  that  the  pleni- 
potentiaries of  France  are  wholly  disposed  to  concur  in  the  insertion  in  the  pro- 
tocol of  a  voeu,  which,  being  fully  in  accordance  with  the  tendencies  of  our  epochs 
would  not  in  any  way  fetter  the  liberty  of  action  of  Governments. 

Count  BuoL  would  not  hesitate  to  concur  in  the  opinion  of  the  plenipoten- 
tiaries of  Great  Britain  and  of  France,  if  the  resolution  of  the  Congress  is  to 
have  the  form  indicated  by  Count  Walewski,  but  he  could  not  take,  in  the  name 
of  his  Court,  an  absolute  engagement  calculated  to  limit  the  independence  of  the 
Austrian  Cabinet. 

The  Earl  of  Clarendon  replies,  that  each  Power  is  and  will  be  the  sole 
judge  of  the  requirements  of  its  honor  and  of  its  interests ;  that  it  is  by  no  means 
his  intention  to  restrict  the  authority  of  the  Governments,  but  only  to  afford  them 
the  opportunity  of  not  having  recourse  to  arms,  whenever  differences  may  be 
adjusted  by  other  means. 

Baron  Manteuffel  gives  the  assurance  that  the  King,  his  august  master, 
completely  shares  the  ideas  set  forth  by  the  Earl  of  Clarendon  ;  that  he  therefore 

*  [Document  prepared  by  Baron  Descamps  at  the  request  of  the  Third  Commission.] 


192  PLENARY  CONFERENCE 

considers  himself  authorized  to  adhere  to  them,  and  to  give  them  the  utmost 
development  which  they  admit  of. 

Count  Orloff,  while  admitting  the  wisdom  of  the  proposal  made  to  the 
Congress,  considers  that  he  must  refer  to  his  Court  respecting  it,  before  he 
expresses  the  opinion  of  the  plenipotentiaries  of  Russia.   .    .    . 

Count  Walewski  adds,  that  there  is  no  question  of  stipulating  for  a  right 
or  of  taking  an  engagement ;  that  the  wish  expressed  by  the  Congress  cannot  in 
any  case  oppose  limits  to  the  liberty  of  judgment,  of  which  no  Power  can  divest 
itself  in  questions  affecting  its  dignity ;  that  there  is  therefore  no  inconvenience  in 
attaching  a  general  character  to  the  idea  entertained  by  the  Earl  of  Clarendon, 
and  in  giving  to  it  the  most  extended  application.   .    .    . 

Count  BuoL  approves  the  proposition  in  the  shape  that  Lord  Clarendon  has 
presented  it,  as  having  a  humane  object;  but  he  could  not  assent  to  it,  if  it  were 
wished  to  give  to  it  too  great  an  extension,  or  to  deduce  from  it  consequences 
favorable  to  de  facto  Governments,  and  to  doctrines  which  he  cannot  admit. 

He  desires  besides  that  the  Conference,  at  the  moment  of  terminating  its 
labors,  should  not  find  itself  compelled  to  discuss  irritating  questions,  calculated 
to  disturb  the  perfect  harmony  which  has  not  ceased  to  prevail  among  the  pleni- 
potentiaries.  .    .    . 

Whereupon,  the  plenipotentiaries  do  not  hesitate  to  express,  in  the  name  of 
their  Governments,  the  voou  that  States,  between  which  any  serious  misunder- 
standing may  arise,  should,  before  appealing  to  arms,  have  recourse,  as  far  as 
circumstances  might  allow,  to  the  good  offices  of  a  friendly  Power. 

The  plenipotentiaries  hope  that  the  Governments  not  represented  at  the 
Congress  will  unite  in  the  sentiment  which  has  inspired  the  vceu  recorded  in  the 
present  protocol. 

2.  Mediation  in  case  of  difference  threatening  the  relations  betzveen  the< 
Sublime  Porte  and  the  other  Powers  signatory  to  the  Treaty  of  Paris  of  1856. 

Treaty  of  March  30,  1856:  Article  8.  If  there  should  arise  between  the 
Sublime  Porte  and  one  or  more  of  the  other  signatory  Powers  a  difference 
threatening  the  maintenance  of  their  relations,  the  Sublime  Porte  or  each  of  the 
Powers,  before  having  recourse  to  the  employment  of  force,  will  put  the  other 
contracting  Parties  in  a  position  to  prevent  this  extremity  through  their  mediation. 

[140]  3.  Good  offices  to  limit  the  theater  of  war  by  neutralising  territories  com- 
prised in  the  basin  of  the  Kongo  as  defined  by  treaty. 
General  Act  of  the  Conference  of  Berlin,  February  26,  1885:  Article  11.  In 
the  case  where  a  Power  exercising  rights  of  sovereignty  or  of  protectorate  in 
the  countries  mentioned  in  Article  1  and  placed  under  the  regime  of  commercial 
liberty  may  be  involved  in  a  war,  the  high  signatory  Parties  of  the  present  act, 
and  those  who  shall  adhere  to  it  subsequently,  engage  themselves  to  lend  their  good 
offices  to  the  end  that  the  territories  belonging  to  this  Power  and  comprised  in  the 
conventional  zone  of  commercial  liberty  may  be,  with  the  common  consent  of  this 
Power  and  of  the  other  party  or  parties  belligerent,  placed  for  the  duration  of 
the  war  under  the  regime  of  neutrality  and  considered  as  belonging  to  a  non- 
belligerent State ;  the  belligerent  parties  may  renounce,  thenceforth,  the  extension 
of  hostilities  to  the  territories  thus  neutralized,  as  also  their  use  as  a  base  for  the 
operations  of  war. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  IpJ 

4.  Obligatory  mediation  and  voluntary  arbitration  in  case  of  serious  dis-^ 
agreement  arising  concerning,  or  within  the  limits  of,  the  basin  of  the  Kongo  as 
defined  by  treaty. 

General  Act  of  the  Conference  of  Berlin,  February  26,  1885  :  Article  12.  Im 
cases  where  serious  disagreement  with  regard  to,  or  within  the  limits  of,  the 
territories  mentioned  in  Article  1  and  placed  under  the  regime  of  commercial; 
liberty,  may  arise  between  the  signatory  Powers  of  the  present  act  or  Powers- 
which  may  adhere  thereto  in  the  future,  these  Powers  agree  before  appealing  tO' 
arms,  to  resort  to  the  mediation  of  one  or  more  friendly  Powers. 

In  the  same  case  the  same  Powers  reserve  the  right  to  resort  voluntarily  to- 
arbitral  procedure. 

5.  Establishment  of  an  arbitral  tribunal  by  virtue  of  the  General  Act  of  the 
Conference  of  Brussels  concerning  the  African  Slave  Trade. 

General  Act  of  the  Conference  of  Brussels,  July  2,  1890:  Article  55.  The 
capturing  officer  and  the  authority  which  has  conducted  the  inquiry  shall  each 
appoint  an  arbitrator  within  forty-eight  hours,  and  the  two  arbitrators  chosen  shall: 
have  twenty-four  hours  to  choose  an  umpire.  The  arbitrators  shall,  as  far  as 
possible,  be  chosen  from  among  the  diplomatic,  consular,  or  judicial  officers  of 
the  signatory  Powers.  Natives  in  the  pay  of  the  contracting  Governments  are 
formally  excluded.  The  decision  shall  be  by  a  majority  of  votes,  and  be  con- 
sidered as  final. 

If  the  court  of  arbitration  is  not  constituted  in  the  time  indicated,  the  pro- 
cedure in  respect  to  the  indemnity,  as  well  as  in  regard  to  damages,  shall  be  in 
accordance  with  the  provisions  of  Article  58,  paragraph  2. 

Article  56.  The  cases  shall  be  brought  with  the  least  possible  delay  before 
the  tribunal  of  the  nation  whose  flag  has  been  used  by  the  accused.  However,  the 
consuls  or  any  other  authority  of  the  same  nation  as  the  accused,  specially  com- 
missioned to  this  end,  may  be  authorized  by  their  Government  to  pronounce  judg- 
ment instead  of  the  tribunal. 

Article  58.  Any  decision  of  the  national  tribunal  or  authorities  referred  to 
in  Article  56,  declaring  that  the  seized  vessel  did  not  carry  on  the  slave  trade,  shall 
be  immediately  enforced,  and  the  vessel  shall  be  at  perfect  liberty  to  continue  on 
its  course. 

In  this  case,  the  captain  or  owner  of  any  vessel  that  has  been  seized  without 
legitimate  ground  of  suspicion,  or  subjected  to  annoyance,  shall  have  the  right: 
of  claiming  damages,  the  amount  of  which  shall  be  fixed  by  agreement  between  the 
Governments  directly  interested,  or  by  arbitration,  and  shall  be  paid  within  a 
period  of  six  months  from  the  date  of  the  judgment  acquitting  the  captured: 
vessel. 

6.  Institution  of  an  arbitral  tribunal  by  virtue  of  the  Universal  Postal  Union. 

Convention  of  July  4,  1891:  Article  23.  Sec.  1.  In  case  of  disagreement 
between  two  or  more  members  of  the  Union  as  to  the  interpretation  of  the  present 
Convention,  or  as  to  the  responsibility  of  an  administration  in  case  of  the  loss 
of  a  registered  article,  the  question  in  dispute  is  decided  by  arbitration.  To  that 
end,  each  of  the  administrations  concerned  chooses  another  member  of  the  Union 
not  directly  interested  in  the  matter. 


194  PLENARY  CONFERENCE 

Sec.  2.     The  decision  of  the  arbitrators  is  given  by  an  absolute  majority 
of  votes. 
[141]   Sec.  3.     In  case  of  an  equality  of  votes  the  arbitrators  choose,  with  a  view 
of  settling  the  difference,  another  administration  equally  uninterested  in 
the  question  in  dispute. 

Sec.  4.  The  stipulations  of  the  present  article  apply  equally  to  all  the  agree- 
ments concluded  by  virtue  of  the  preceding  Article  19.  (Regarding  services  in 
connection  with  letters  and  boxes  of  declared  value,  postal  money  orders,  parcel 
post,  collection  of  bills  and  drafts,  certificates  of  identity,  subscriptions  to  news- 
papers, etc.) 

7.  Establishment  of  a  voluntary  arbitration  office,  by  virtue  of  the  Inter- 
national Union  for  the  Transportation  of  Merchandise  by  Railroad. 

Convention  of  October  14,  1890:  Article  57.  Sec.  1.  To  facilitate  and 
assure  the  execution  of  the  present  Convention,  a  central  office  of  international 
transportation  shall  be  organized,  charged  with  ...  3.  To  decide,  at  the  request 
of  the  parties,  disputes  which  may  arise  concerning  railroads. 

Article  22,  section  2,  of  the  Convention  of  July  4,  1891,  authorizes  the  Inter- 
national Bureau  of  the  Postal  Union  "  to  give  at  the  request  of  the  parties  con- 
cerned, an  opinion  upon  questions  in  dispute."  These  judicial  opinions  form  a 
sort  of  pre-arbitration  which  it  seemed  interesting  to  note. 

In  fulfilment  of  Article  57,  section  1,  of  the  Convention  of  October  14,  1890, 
the  Swiss  Federal  Council  published,  under  date  of  November  29,  1892,  a  set  of 
regulations  determining  the  arbitral  procedure  for  disputes  brought  before  the 
central  office  for  international  transportation. 


Section  2. — Special  Conventional  Law 

Germany 

Article  1  of  the  Anglo-German  agreement  of  July  1,  1890,  provides  that  the 
"delimitation  of  the  southern  frontier  of  "  Walfish  Bay  "  shall  be  reserved  for 
decision  by  arbitration  if  within  two  years  from  the  date  of  the  signature  of  this 
agreement  no  understanding  is  reached  between  the  two  Powers  regarding  the 
determination  of  the  said  frontier. 

Austria-Hungary 

The  treaty  of  Commerce  of  May  17,  1869,  between  Austria-Hungary  and 
'Siam  contains  a  general  clause  providing  for  arbitration  concerning  all  differences 
which  may  arise  between  the  two  countries. 

Article  26 

Should  any  question  arise  between  the  high  contracting  Powers,  which  is 
not  settled  by  amicable  diplomatic  intercourse  or  correspondence,  it  is  hereby 
agreed  that  the  settlement  of  such  question  shall  be  referred  to  the  arbitration 
of  a  friendly  neutral  Power,  to  be  chosen  by  common  accord,  and  that  the 
result  of  such  arbitration  shall  be  accepted  by  the  high  contracting  Parties 
as  a  final  decision. 


SEVENTH  MEETING,  JULY  25,  1899 :  ANNEXES  195 

Belgium 

Belgium  has  concluded  eleven  treaties  containing  arbitration  clauses. 
Six  of  these  clauses  are  general  and  coverall  possible  differences.     The  other 
five  are  of  limited  scope. 

The  general  arbitration  clauses  are  the  following : 

1.  Belgium  and  the  Hawaiian  Islands.  Treaty  of  Friendship,  Commerce, 
and  Navigation,  October  4,  1862.     Article  26 : 

If,  by  the  concurrence  of  unfortunate  circumstances,  differences  between 
the  contracting  Parties  become  the  ground  for  an  interruption  of  friendly 
relations,  and  if,  after  they  have  exhausted  all  means  for  a  friendly  and  con- 
ciliatory discussion,  the  object  of  their  mutual  desires   is   not  reached, 
[142]  arbitration   by   a   third    Power,    friendly   to    both    Parties,    shall   be   in- 
voked by  common  accord,  in  order  to  prevent  by  this  means  a  complete 
rupture. 

2.  Belgium  and  Siam.  Treaty  of  Friendship  and  Commerce,  August  29, 
1868.    Article  24: 

If  any  difference  shall  arise  between  the  two  contracting  countries  which 
may  not  be  settled  amicably  by  diplomatic  correspondence  between  the  two 
Governments,  these  Governments  shall,  by  common  accord,  nominate  as 
arbitrator  some  third  neutral  and  friendly  Power,  and  the  result  of  the 
arbitration  shall  be  accepted  by  the  two  Parties. 

3.  Belgium  and  the  South  African  Republic.  Treaty  of  Friendship,  Estab- 
lishment, and  Commerce,  February  3,  1876.  Article  14.  (Same  text  as  that  of 
the  treaty  with  the  Hawaiian  Islands,  above.  No.  1.) 

4.  Belgium  and  Venezuela.  Treaty  of  Friendship,  Commerce,  and  Navi- 
gation, March  1,  1884.     Article  2: 

If  any  difference  whatever  arises  between  Belgium  and  Venezuela,  which 
cannot  be  settled  in  a  friendly  manner,  the  two  high  contracting  Parties  agree 
to  submit  the  solution  of  the  difficulty  to  the  arbitration  of  a  friendly  Power, 
proposed  and  accepted  by  common  agreement. 

5.  Belgium  and  Eucador.  Treaty  of  Friendship,  Commerce,  and  Navi- 
gation, March  5,  1887.  Article  2.  (Same  text  as  that  of  the  treaty  with  Vene- 
zuela, supra.  No.  4.) 

6.  Belgium  and  the  Orange  Free  State.  Treaty  of  Friendship,  Establish- 
ment, and  Commerce,  December  27,  1894.  Article  14.  (Same  text  as  that  of 
the  treaty  with  the  Hawaiian  Islands,  supra,  No.  1.) 

The  clauses  providing  for  limited  arbitration  are : 

1.  Belgium  and  Italy.  Treaty  of  Commerce  and  Navigation,  December  11, 
1882.     Article  20 : 

If  any  difficulty  arises  concerning  either  the  interpretation  or  the  execu- 
tion of  the  preceding  articles,  the  two  high  contracting  Parties,  after  having 
exhausted  all  direct  means  of  reaching  an  agreement,  agree  to  resort  to  the 
decision  of  a  commission  of  arbitrators. 

This  commission  shall  be  composed  of  an  equal  number  of  arbitrators 
chosen  by  the  high  contracting  Parties  and  an  arbitrator  chosen  by  the 
commission  itself. 

The  procedure  to  be  followed  shall  be  determined  by  the  arbitrators, 
unless  an  agreement  be  reached  in  regard  thereto  by  the  Belgian  aad  Italian 
Governments. 


196  PLENARY  CONFERENCE 

2.  Belgium  and  Greece.     Treaty  of  Commerce  and  Navigation,  May  25, 
1895.    Article  21: 

The  high  contracting  Parties  agree  to  resort  to  arbitration  in  all  disputes 
which  may  arise  from  the  interpretation  or  execution  of  the  present  treaty. 

3.  Belgium  and  Sweden.     Treaty  of  Commerce  and  Navigation,  June  11, 
1895.    Article  20.     (Same  text  as  that  of  the  treaty  with  Greece,  supra,  No.  2.) 

4.  Belgium  and  Norway.     Treaty  of  Commerce  and  Navigation,  June  11, 
1895.    Article  20 : 

In  cases  involving  a  difference  between  the  two  contracting  Powers 
arising  from  the  interpretation  or  application  of  the  present  treaty,  which 
cannot  be  settled  in  a  friendly  manner  by  diplomatic  correspondence,  the  two 
Powers  agree  to  submit  the  same  to  the  decision  of  an  arbitral  tribunal,  whose 
decision  they  agree  to  respect  and  loyally  to  execute. 

The  arbitral  tribunal  shall  be  composed  of  three  members.  Each  of  the 
two  contracting  Parties  shall  designate  one,  not  chosen  from  among  its 
nationals  or  the  inhabitants  of  its  country.  These  two  arbitrators  shall  name 
a  third.  If  they  cannot  come  to  an  agreement  thereon,  the  third  arbitrator 
shall  be  named  by  a  Government  selected  by  the  two  arbitrators,  or  if  they 
fail  to  agree,  then  by  lot, 

5.  Belgium  and  Denmark.     Treaty  of  Commerce  and  Navigation,  June  18, 
1895.    Article  20.     (Same  text  as  that  of  the  treaty  with  Greece,  supra.  No.  2.) 

Demnark 

1.  Denmark  and  Venezuela.     Treaty  of  Commerce  and  Navigation,  De- 
cember 19,  1862.     Article  26 : 

If,  by  the  concurrence  of  unfortunate  circumstances,  differences  between 

the  two  high  contracting  Parties  cause  an  interruption  of  friendly  relations, 

and  if  after  they  have  exhausted  the  means  for  friendly  and  conciliatory 

discussion   the  object  of   their   respective   claims   is   not   completely   at- 

[143]  tained,    arbitration    by    a    third    friendly    and    neutral    Power    shall    be 

invoked   by  common   agreement   before   resorting   to   the   awful   use   of 

arms. 

An  exception  to  the  above  is  made  in  the  case  where  the  Party  which 
believes  itself  injured  cannot  secure  the  consent  of  the  other  Party  to  the 
choice  of  an  arbitrator  by  common  accord,  or  in  default  of  common  agree- 
ment, by  lot,  within  three  months  counting  from  the  day  the  invitation  to 
make  such  choice  is  extended  to  it. 

2.  Denmark  and  Belgium.     Treaty  of  Commerce  and  Navigation,  June  18, 
1895.     Article  20.     (Reproduced  under  the  heading,  Belgium.) 

Spain 

Below  are  given  the  treaties  concluded  by  Spain  in  which  the  arbitration 
clause  has  been  inserted: 

A,     General  clauses  of  arbitration: 

1.     Spain  and  Venezuela.     Treaty  of  Commerce  and  Navigation,  May  20, 
1882.     Article  14: 

If,  as  is  not  to  be  anticipated,  there  should  arise  between  Venezuela  and 
Spain  any  difference  which  it  shall  not  be  possible  to  settle  in  a  friendly 
manner  by  the  usual  and  ordinary  means,  the  two  high  contracting  Parties 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  197 

agree  to  submit  such  difference  to  the  arbitration  of  any  third  Power  friendly 
to  both,  which  may  have  been  proposed  and  accepted  by  mutual  consent. 

2.  Spain  and  Ecuador.    Additional  Treaty  of  Peace  and  Friendship,  May  26, 
1888.    Article  1 : 

Every  question  or  difference  which  may  arise  between  Spain  and  Ecuador 
respecting  the  interpretation  to  be  placed  on  the  existing  treaties,  or  respecting 
any  other  point  not  foreseen  in  them,  shall,  if  it  cannot  be  settled  in  an  ami- 
cable manner,  be  submitted  to  the  arbitration  of  a  friendly  Power,  to  be 
proposed  and  accepted  by  common  consent. 

3.  Spain  and  Colombia.     Additional  Treaty  of  Peace  and  Friendship  to  the 
treaty  of  1881,  signed  at  Bogota,  April  28,  1894.     Article  1 : 

Every  controversy  or  difference  which  may  arise  between  Spain  and 
Colombia  regarding  the  interpretation  of  the  existing  treaties,  and  any  others 
which  may  hereafter  be  entered  into,  shall  be  decided  by  an  arbitrator  whose 
decision  shall  be  final,  and  who  shall  be  proposed  and  accepted  by  common 
agreement.  The  differences  which  may  arise  upon  points  not  provided  for 
in  the  said  treaties  or  agreements  shall  likewise  be  submitted  to  arbitration ; 
but  if  there  is  not  any  agreement  regarding  the  adoption  of  this  procedure, 
because  the  questions  affect  the  sovereignty  of  the  nation  or  are  otherwise 
incompatible  with  arbitration,  both  Governments  will  be  bound  in  every  case 
to  accept  the  mediation  or  good  offices  of  a  friendly  Government  for  the 
amicable  solution  of  all  differences. 

When  any  difference  between  Spain  and  Colombia  is  submitted  to  the 
judgment  of  an  arbitrator,  the  high  contracting  Parties  shall  establish,  by 
common  accord,  the  mode  of  procedure,  terms,  and  formalities  which  the 
judge  and  the  parties  must  observe,  in  the  course  and  termination  of  the 
judgment  by  arbitration. 

4.  Spain  and  Honduras.     Treaty  of  Peace  and  Friendship,  November  17, 
1894.    Article  2.     (Text  identical  with  that  in  No.  2.) 

[144]   B.     Clause  providing  for  limited  arbitration: 

Spain  and  Sweden  and  Norway.    Declarations,  June  23,  1887.    Article  2 : 

Questions  which  may  arise  regarding  the  interpretation  or  execution  of 
the  treaty  of  commerce  between  Spain  and  Sweden  and  Norway,  of  March 
15,  1883,  suspended  by  the  convention  of  January  18  last,  and  of  the  treaty 
of  navigation  between  the  same  countries  of  March  15,  1883,  or  concerning 
the  consequences  of  any  violation  of  those  treaties  whatever,  shall  be  sub- 
mitted to  arbitral  commissions  when  all  direct  means  of  settlement  and 
friendly  discussion  between  the  two  high  contracting  Parties  have  been 
exhausted,  and  the  decisions  of  the  commissions  shall  be  binding  upon  the 
high  contracting  Parties. 

The  members  of  these  commissions  shall  be  named  by  common  agreement 
by  the  two  high  contracting  Parties,  and  in  case  an  agreement  cannot  be 
obtained,  each  of  them  shall  name  one  arbitrator  or  an  equal  number  of 
arbitrators,  and  those  thus  nominated  to  these  offices  shall  designate  an  ad- 
ditional arbitrator  who  shall  act  in  case  of  disagreement. 

The  high  contracting  Parties  shall  fix  the  arbitral  procedure  in  each  case, 
and  if  they  fail  to  do  so,  the  arbitral  commission  shall  determine  it  before 
exercising  its  powers.  In  every  case,  the  high  contracting  Parties  shall  set 
forth  exactly  the  questions  or  matters  to  be  submitted  to  arbitration. 

See  the  ministerial  notes  of  January  27,  1892,  and  August  9,  1893,  mentioned 
under  the  headings,  "  Sweden  "  and  "  Norway." 


198  PLENARY  CONFERENCE 

France 

The  Treaty  of  Friendship,  Commerce,  and  Navigation,  of  June  4,  1886,  be- 
tween France  and  Korea  contains  in  Article  1,  section  2,  the  following  provision: 

If  differences  arise  between  one  of  the  high  contracting  Parties  and  a 
third  Power,  the  other  high  contracting  Party  may  be  required  by  the  first 
to  lend  its  good  offices  with  a  view  to  bringing  about  a  friendly  settlement. 

Great  Britain 

The  treaties  concluded  by  Great  Britain  and  containing  the  arbitration  clauses 
are  as  follows : 

1.  Great  Britain  and  Italy.  Treaty  of  Commerce  and  Navigation,  June  15, 
1883.     Annexed  protocol : 

Any  controversies  which  may  arise  respecting  the  interpretation  or  the 
execution  of  the  present  treaty,  or  the  consequences  of  any  violation  thereof, 
shall  be  submitted,  when  the  means  of  settling  them  directly  by  amicable 
agreement  are  exhausted,  to  the  decision  of  commissions  of  arbitration,  and 
the  result  of  such  arbitrations  shall  be  binding  upon  both  Governments. 

The  members  of  such  commissions  shall  be  selected  by  the  two  Govern- 
ments by  common  consent,  failing  which  each  of  the  Parties  shall  nominate 
an  arbitrator,  or  an  equal  number  of  arbitrators,  and  the  arbitrators  thus 
appointed  shall  select  an  umpire. 

The  procedure  of  the  arbitrators  shall  in  each  case  be  determined  by  the 
contracting  Parties,  failing  which  the  commission  of  arbitration  shall  itself  be 
entitled  to  determine  it  beforehand. 

2.  Great  Britain  and  Uruguay.  Treaty  of  Commerce  and  Navigation  of 
November  13,  1885.     Article  15.     (Text  identical  with  that  of  No.  1.) 

3.  Great  Britain  and  Greece.  Treaty  of  Commerce  and  Navigation  of 
November  10,  1886.     Annexed  protocol.     (Text  identical  with  that  of  No.  1.) 

4.  Great  Britain  and  Mexico.  Treaty  of  Friendship,  Commerce,  and  Navi- 
gation of   November  27,    1888.      Article    15.       (Text   identical   with  that   of 

No.  1.) 

[145]  5.     Great  Britain  and  Portugal.     Anglo-Fortuguese  modus  vivetidi  oi  May 
31,  1893.     (Delimitation  of  possessions  in  Eastern  Africa.) 

Greece 

1.  Greece  and  Italy.  Consular  Convention  of  November  27,  1880.  Article 
32.     (Reproduced  under  the  heading,  "  Italy.") 

2.  Greece  and  Great  Britain.  Treaty  of  Commerce  and  Navigation,  Novem- 
ber 10,  1886.  Annexed  protocol.  (Reproduced  under  the  heading,  "  Great 
Britain.") 

3.  Greece  and  Belgium.  Treaty  of  Commerce  and  Navigation,  May  25, 
1895.    Article  21.     (Reproduced  under  the  heading,  "  Belgium,") 

Italy 
The  following  treaties  contain  the  clause  providing  for  arbitration  (compromis 
-clause) : 

1.     Italy  and  Uruguay.     Extradition  Convention,  April  14,  1879.     Article  16: 

The  high  contracting  Parties  agree  that  controversies  which  may  arise 
respecting  the  interpretation  or  execution  of  the  present  Convention,  or  the 


SEVENTH  MEETING,  JULY  25,  1899 :  ANNEXES  199 

consequences  of  any  infraction  of  one  of  its  provisions,  should,  when  the 
means  of  composing  them  directly  by  amicable  agreement  shall  have  been 
exhausted,  be  submitted  to  the  decision  of  commissions  of  arbitration,  and 
that  the  issue  of  such  arbitration  should  be  binding  upon  both  Governments. 

The  members  composing  such  commissions  shall  be  chosen  by  the  two 
Governments  by  common  accord;  in  default  of  this,  each  of  the  Parties  shall 
appoint  its  own  arbitrator,  or  an  equal  number  of  arbitrators,  and  the  arbi- 
trators appointed  shall  select  another. 

The  procedure  to  be  observed  in  arbitration  shall  in  each  case  be  deter- 
mined by  the  contracting  Parties,  and  failing  this,  the  commission  of  arbi- 
trators shall  consider  itself  authorized  to  determine  it  beforehand. 

2.  Italy  and  Roumania.  Consular  Convention,  August  17,  1880.  Article 
32.     (Text  identical  with  that  of  No.  1.) 

3.  Italy  and  Greece.  Consular  Convention  of  November  27,  1880.  Article 
26.  (Text  identical  with  that  of  No.  1,  except  for  the  addition  to  the  first  para- 
graph of  the  following  provision :  "  It  is  understood  that  the  jurisdiction  of  the 
respective  tribunals  in  matters  of  private  law  is  in  no  way  restricted  by  the  pro- 
visions of  the  present  article.") 

4.  Italy  and  Belgium.  Treaty  of  Commerce,  December  11,  1882.  Article 
20.     (Text  reproduced  above  under  the  heading,  "Belgium.") 

5.  Italy  and  Montenegro.  Treaty  of  Commerce,  March  28,  1883. 
Article  17: 

In  case  of  disagreement  concerning  the  interpretation  or  execution  of 
the  provisions  contained  in  the  present  treaty,  when  direct  means  of  reaching 
an  agreement  by  friendly  arbitration  have  been  exhausted,  the  question  shall 
be  submitted  to  the  decision  of  a  commission  of  arbitrators,  and  the  result  of 
this  arbitration  shall  be  binding  upon  both  Governments. 

This  commission  shall  be  composed  of  an  equal  number  of  arbitrators 
chosen  by  each  Party,  and  .the  arbitrators  thus  chosen  shall,  before  performing 
any  other  operation,  choose  a  last  arbitrator.  The  arbitral  procedure,  if  the 
Parties  do  not  determine  it  by  agreement,  shall  be  previously  decided  upon 
by  the  commission  of  arbitrators  itself. 

6.  Italy  and  Great  Britain.  Treaty  of  Commerce,  June  15,  1883.  Annexed 
protocol.     (Text  similar  to  that  of  No.  1.) 

7.  Italy  and  the  Netherlands.  Convention  for  Free  Patronage,  January  9, 
1884.     Article  4: 

If  any  difficulty  arises  concerning  the  interpretation  of  this  Convention, 

the  two  high  contracting  Parties  agree  to  submit  it  to  a  commission  of 

[146]  arbitrators.     This   commission   shall   be   composed   of   an   equal   number 

of  arbitrators  chosen  by  the  high  contracting  Parties  and  an  arbitrator 

chosen  by  the  commission  itself. 

8.  Italy  and  Korea.     Treaty  of  Friendship,  Commerce,  and  Navigation,  June 

26,  1884.    Article  1 : 

In  case  of  differences  arising  between  one  of  the  high  contracting  Parties 
and  a  third  Power,  the  other  high  contracting  Party,  if  requested  to  do  so, 
shall  exert  its  good  offices  to  bring  about  an  amicable  settlement  of  the 
difficulty. 

9.  Italy  and  Uruguay.     Treaty  of  Commerce,  September  19,  1885.    Article 

27.  (Text  identical  with  that  of  No.  1.) 


200  PLENARY  CONFERENCE 

10.  Italy  and  South  African  Republic.     Treaty  of  Commerce,  October  6, 
1886.    Article  9.     (Text  identical  with  that  of  No.  7.) 

11.  Italy  and  the  Republic  of  San  Domingo.     Treaty  of  Commerce,  October 
18,  1886.    Article  28.     (Text  identical  with  that  of  No.  1.) 

12.  Italy  and  Greece.     Treaty  of  Commerce,  April  1,  1889.     Annexed  pro- 
tocol.    (Text  identical  with  that  of  No.  1.) 

13.  Italy  and  Orange  Free  State.     Treaty  of  Commerce,  January  9,  1890. 
Article  9.     (Text  identical  with  that  of  No.  7.) 

14.  Italy  and  Mexico.     Treaty  of  Commerce,  April  16,  1890.     Article  27. 
(Text  similar  to  that  of  No.  1.) 

15.  Italy   and    Switzerland.      Treaty   of    Commerce   of    April    19,    1892. 
Article  14: 

The  high  contracting  Parties  agree,  should  occasion  arise,  to  settle  by 
means  of  arbitration  questions  concerning  the  interpretation  and  application 
of  the  present  treaty,  which  cannot  be  settled  to  their  common  satisfaction 
by  the  direct  method  of  diplomatic  negotiation. 

16.  Italy  and  Colombia.     Treaty  of  Commerce,  October  27,  1892.     Article 
27.     (Text  similar  to  that  of  No.  1.) 

17.  Italy  and   Montenegro.     Extradition   Convention,    October  29,    1892. 
Article  18.     (Text  identical  with  that  of  No.  5.) 

18.  Italy  and  Paraguay.     Treaty  of  Commerce,  August  22,  1893.     Article 
23.     (Text  identical  with  that  of  No.  1.) 

19.  Italy  and  Argentine  Republic.     General  Treaty  of  Arbitration,  July  23, 
1898: 

His  Majesty  the  King  of  Italy  and  his  Excellency  the  President  of  the 
Argentine  Republic,  animated  by  the  desire  of  always  promoting  the  cordial 
relations  which  exist  between  their  States,  have  resolved  to  conclude  a 
general  treaty  of  arbitration,  and  have  named  for  this  purpose  as  the  ministers 
plenipotentiary : 

His  Majesty  the  King  of  Italy,  his  Excellency  Count  Napoleon  Cane- 
VARO,  Senator  of  the  Kingdom,  Vice  Admiral  in  the  Royal  Navy,  his  Minister 
of  Foreign  Affairs;  and  his  Excellency  the  President  of  the  Argentine  Re- 
public, his  Excellency  Don  Enrice  B.  Moreno,  his  Envoy  Extraordinary, 
etc..  Minister  Plenipotentiary  at  the  Court  of  the  King  of  Italy ; 

Who,  having  found  their  respective  full  powers  to  be  perfectly  regular, 
have  agreed  upon  the  following: 

Article  1.  The  high  signatory  Powers  agree  to  submit  to  arbitral 
decision  all  controversies,  whatever  may  be  their  nature  and  cause,  which 
may  arise  between  them,  during  the  existence  of  this  treaty,  and  which  could 
not  be  settled  in  a  friendly  manner  by  direct  negotiation. 

It  makes  no  difference  if  the  controversies  originated  in  facts  prior  to  the 
provision  of  the  present  treaty. 

Article  2.  The  high  signatory  Powers  shall  conclude  a  special  con- 
vention for  each  case,  in  order  to  set  forth  the  exact  matter  in  dispute,  the 
extent  of  the  powers  of  the  arbitrators,  and  any  other  matter  with  regard 
to  procedure  which  shall  be  deemed  proper. 

In  default  of  such  convention,  the  tribunal  shall  specify,  according  to 
the  reciprocal  claims  of  the  Parties,  the  points  of  law  and  fact  which  should 
be  decided  to  close  the  controversy. 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  201 

[147]  In  all  other  regards,  in  default  of  a  special  convention,  the  following 
rules  shall  apply : 

Article  3.  The  tribunal  shall  be  composed  of  three  judges.  Each  one 
of  the  signatory  States  shall  designate  one  of  them.  The  arbitrators  thus 
chosen  shall  choose  the  third  arbitrator. 

If  they  cannot  agree  upon  a  choice,  the  third  arbitrator  shall  be  named 
"by  the  head  of  a  third  State,  who  shall  be  called  upon  to  make  the  selection. 
This  State  shall  be  designated  by  the  arbitrators  already  named.  If  they 
cannot  agree  upon  the  nomination  of  a  third  arbitrator,  request  shall  be  made 
of  the  President  of  the  Swiss  Confederation  and  of  the  King  of  Sweden  and 
Norway,  alternately.  The  third  arbitrator  thus  selected  shall  be  of  right 
president  of  the  tribunal. 

The  same  person  can  never  be  named  successively  as  third  arbitrator. 

None  of  the  arbitrators  shall  be  a  citizen  of  the  signatory  States,  nor 
domiciled  or  resident  within  their  territories.  The  arbitrators  shall  have  no 
interest  whatever  in  the  questions  forming  the  subject  of  arbitration. 

Article  4.  When  one  arbitrator,  for  whatever  reason,  cannot  take 
charge  of  the  office  to  which  he  has  been  named,  or  if  he  cannot  continue 
therein,  his  successor  shall  be  appointed  by  the  same  procedure  as  was  fol- 
lowed for  his  appointment. 

Article  5.  In  default  of  special  agreements  between  the  Parties,  the 
tribunar\shall  designate  the  time  and  place  for  its  meetings  outside  the  terri- 
tories of  the  contracting  States,  choose  the  language  to  be  used,  determine 
the  methods  of  examination,  the  formalities  and  periods  which  shall  be 
prescribed  for  the  Parties,  the  procedure  to  be  followed,  and,  in  general, 
make  all  decisions  necessary  for  their  operations,  as  well  as  settle  all  diffi- 
culties concerning  procedure  which  may  arise  during  the  course  of  the 
argument. 

The  Parties  agree,  on  their  side,  to  place  at  the  disposal  of  the  arbitrators 
all  means  of  information  within  their  power. 

Article  6.  An  agent  of  each  Party  shall  be  present  at  the  sessions  and 
represent  his  Government  in  all  matters  regarding  arbitration. 

Article  7.  The  tribunal  has  power  to  decide  upon  the  regularity  of 
its  formation,  the  validity  of  the  compromis  and  the  interpretation  thereof. 

Article  8.  The  tribunal  shall  decide  according  to  the  principles  of 
international  law,  unless  the  compromis  applies  special  rules  or  authorizes 
the  arbitrators  to  decide  only  in  the  role  of  amiable  compositeurs. 

Article  9.  Unless  there  is  a  provision  expressly  to  the  contrary,  all 
the  deliberations  of  the  tribunal  shall  be  valid  when  they  are  secured  by  a 
majority  vote  of  all  of  the  arbitrators. 

Article  10.  The  award  shall  decide  finally  each  point  in  litigation. 
It  shall  be  drawn  up  in  duplicate  original  and  signed  by  all  the  arbitrators. 
In  case  one  of  them  refuses  to  sign,  the  others  shall  mention  it  and  the 
award  shall  take  effect  when  signed  by  the  absolute  majority  of  the  arbi- 
trators.    Dissenting  opinions  shall  not  be  inserted  in  the  decision. 

The  award  shall  be  notified  to  each  Party  through  its  representative 
before  the  tribunal. 

Article  11.  Each  Party  shall  bear  its  own  expenses  and  one-half  of  the 
general  expenses  of  the  arbitral  tribunal. 

Article  12.  The  award,  legally  rendered,  decides  the  dispute  between 
the  Parties  within  the  limits  of  its  scope. 

It  shall  contain  an  indication  of  the  period  within  which  it  must  be 
executed.  The  tribunal  which  rendered  it  shall  decide  questions  which  may 
arise  concerning  its  execution. 


202  PLENARY  CONFERENCE 

Article  13.  The  decision  cannot  be  appealed  from,  and  its  execution 
is  entrusted  to  the  honor  of  the  nations  signatory  to  this  agreement. 

However,  a  demand  for  revision  will  be  allowed  before  the  same  tribunal 
which  rendered  the  award  and  before  it  is  executed : 

(1)  If  it  has  been  based  upon  a  false  or  erroneous  document; 

(2)  If  the  decision  was  in  whole  or  in  part  the  result  of  an  error  of  posi- 
tive  or   negative   fact   which    results    from   the   acts    or   documents   in 

[148]  the  case. 

Article  14.  The  present  treaty  shall  run  for  a  period  of  ten  years 
from  the  exchange  of  ratifications.  If  it  is  not  denounced  six  months  before 
its  expiration,  it  shall  be  considered  renewed  for  another  period  of  ten  years, 
and  so  on  in  like  manner. 

Article  15.  The  present  treaty  shall  be  ratified  and  the  ratifications 
exchanged  at  Buenos  Aires  within  six  months  from  this  date. 

Japan 

Japan  concluded  a  treaty  of  Friendship,  Commerce,  and  Navigation  with 
Siam,  February  25,  1898.  Article  3  of  the  annexed  protocol  contains  the  follow- 
ing arbitration  clause : 

Any  controversies  which  may  arise  respecting  the  interpretation  or  the 
execution  of  the  treaty  signed  this  day  or  the  consequences  of  any  violation 
thereof  shall  be  submitted,  when  the  means  of  settling  them  directly  by  ami- 
cable agreement  are  exhausted,  to  the  decision  of  commissions  of  arbitration, 
and  the  result  of  such  arbitration  shall  be  binding  upon  both  Governments. 

The  members  of  such  commissions  shall  be  selected  by  the  two  Govern- 
ments by  common  consent,  failing  which  each  of  the  Parties  shall  nominate 
an  arbitrator,  or  an  equal  number  of  arbitrators,  and  the  arbitrators  thus 
appointed  shall  select  an  umpire. 

The  procedure  of  the  arbitration  shall  in  each  case  be  determined  by  the 
contracting  Parties,  failing  which  the  commission  of  arbitration  shall  be  itself 
entitled  to  determine  it  beforehand. 

Mexico 

1.  Mexico  and  Great  Britain.  Treaty  of  Friendship,  Commerce,  and  Navi- 
gation of  November  27,  1888.  Article  15.  (Reproduced  under  the  heading, 
"  Great  Britain.") 

2.  Mexico  and  Italy.  Treaty  of  Commerce  of  April  16^  1890.  Article  27. 
(Reproduced  under  the  heading,  "  Italy.") 

Montenegro 

Montenegro  and  Italy.  Treaty  of  Commerce  of  March  28,  1883.  Article  17. 
(Reproduced  under  the  heading,  "  Italy.") 

Norway 
Norway  is  bound  by  clauses  of  arbitration  with  the  following  countries : 

1.  Sweden  and  Norway  and  Siam.  Treaty  of  Friendship,  Commerce,  and 
Navigation  of  May  18,  1868.  Article  28.  (Text  identical  with  Article  26  of 
the  treaty  between  Austria-Hungary  and  Siam,  reproduced  under  the  heading, 
"  Austria-Hungary.") 

2.  Sweden  and  Norway,  and  Mexico.  Treaty  of  July  29,  1885.  Articles 
26  and  27. 


'     SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  203 

Article  26.  The  questions  that  may  arise  respecting  the  interpretation 
or  the  execution  of  the  treaty  of  commerce  between  Sweden  and  Norway  and 
Mexico  or  respecting  the  consequences  of  any  violation  of  the  said  treaty 
shall  be  submitted,  when  all  direct  means  of  arrangement  and  friendly  dis- 
cussion between  the  two  high  Parties  have  been  exhausted,  to  commissions 
of  arbitration  whose  decisions  shall  be  binding  on  the  high  contracting  Parties. 
The  members  of  these  commissions  shall  be  appointed  by  a  common  agree- 
ment by  the  two  high  Parties,  and  in  case  agreement  can  not  be  reached,  each 
of  them  shall  name  an  arbitrator  or  an  equal  number  of  arbitrators,  and 
those  who  are  thus  named  shall  designate  an  umpire,  who  shall  act  in  case 

of  disagreement.     The  procedure  for  the  arbitration  shall  be  determined 
[149]  in  each  case  by  the  high  contracting  Parties,  and  in  default  thereof  the 

commission  of  arbitration  shall  determine  it  before  entering  upon  its 
duties.  In  all  cases  the  high  contracting  Parties  shall  define  the  questions  or 
matters  which  are  to  be  submitted  to  arbitration. 

Article  27.  It  is  consequently  stipulated  that  if  one  or  more  articles 
of  the  present  treaty  come  to  be  violated  or  infringed,  neither  of  the  con- 
tracting Parties  shall  make  or  authorize  reprisals  of  any  kind,  nor  declare  war 
upon  the  other  by  reason  of  an  injury  suffered  by  it  until  the  Party  which 
considers  itself  aggrieved  has  presented  to  the  other  a  statement  accompanied 
by  evidence  of  its  complaints,  and,  after  having  requested  justice  and  satis- 
faction, its  request  has  been  rejected  and  the  oflfending  Party  has  refused 
to  submit  the  difference  to  the  commission  of  arbitration. 

3.  Sweden  and  Norway  and  Spain.  Declaration  of  June  23,  1887.  Article 
2.     (Text  reproduced  under  the  heading,  "  Spain.") 

4.  Norway  and  Spain.  Diplomatic  notes  of  January  27,  1892,  and  August 
9,  1893,  concerning  the  application  of  the  principle  of  arbitration,  as  it  is  regulated 
by  the  Declaration  of  June  23,  1887,  to  the  Conventions  of  January  24,  1892,  and 
June  27,  1892,  respecting  the  commercial  relations  of  the  two  countries. 

5.  Norway  and  Switzerland.  Treaty  of  Commerce  and  Settlement  of 
March  22,  1894.    Article  7 : 

In  case  a  difference  respecting  the  interpretation  or  the  application  of 
the  present  treaty  arises  between  the  two  contracting  Parties  and  can  not 
be  settled  in  a  friendly  way  by  means  of  diplomatic  correspondence,  they 
agree  to  submit  it  to  the  judgment  of  an  arbitral  tribunal,  whose  decision  they 
engage  to  respect  and  execute  loyally. 

The  arbitral  tribunal  shall  be  composed  of  three  members.  Each  of  the 
contracting  Parties  shall  designate  one  of  them,  who  shall  be  chosen  outside 
its  nationals  and  the  inhabitants  of  the  country.  These  two  arbitrators  shall 
name  the  third.  If  they  can  not  agree  on  the  choice  of  the  latter,  the  third 
arbitrator  shall  be  named  by  a  Government  designated  by  the  two  arbitrators 
or,  in  default  of  agreement,  by  lot. 

6.  Norway  and  Belgium.  Treaty  of  Commerce  and  Navigation  of  June  11, 
1895.     Article  20.     (Text  reproduced  above  under  the  heading,  "  Belgium.") 

7.  Sweden  and  Norway  and  Chile.  Declaration  of  July  6,  1895,  concerning 
the  establishment  of  an  arbitral  tribunal  for  the  claims  for  indemnity  relating  to 
the  civil  war  in  Chile  in  1891. 

8.  Norway  and  Portugal.  Treaty  of  Commerce  of  December  31,  1895. 
(Same  text  as  that  of  the  treaty  with  Switzerland  reproduced  above.  No.  5.) 


204  PLENARY  CONFERENCE 

Netherlands 

1.  Netherlands  and  Italy.  Convention  for  Gratuitous  Patronage  of  January 
9,  1884.    Article  4.     (Reproduced  under  the  heading,  "  Italy.") 

2.  Netherlands  and  Portugal.  These  two  States  are  reciprocally  bound  by 
a  clause  of  arbitration,  at  first  limited,  then  generalized  under  the  following 
conditions : 

A.  Clause  of  limited  arbitration.  The  Convention  concluded  at  Lisbon, 
June  10,  1893,  between  the  Netherlands  and  Portugal  to  regulate  in  an  exact 
way  the  relations  between  the  two  countries  in  the  Archipelago  of  Timor  and 
Solor  contains  in  its  Article  7  the  following  arbitration  clause : 

In  case  any  difference  should  arise  in  respect  of  their  international  rela- 
tions in  the  Archipelago  of  Timor  and  Solor  or  on  the  subject  of  the  inter- 
pretation of  the  present  Convention,  the  high  Parties  engage  to  submit  to  the 
decision  of  a  commission  of  arbitrators.  This  commission  shall  be  composed 
of  an  equal  number  of  arbitrators  chosen  by  the  high  contracting  Parties  and 
an  arbitrator  designated  by  those  arbitrators. 

B.  Clause  of  general  arbitration.  The  Declaration  exchanged  at  Lisbon, 
July  5,  1894,  between  the  two  Governments  on  the  subject  of  the  provisional 
regulation  of  commercial  relations  contains  the  following  clause : 

All  questions  and  all  differences  respecting  the  interpretation  or  execu- 
tion of  the  present  Declaration  and  likewise  any  other  question  that  may 
arise  between  the  two  countries,  provided  that  it  does  not  touch  their 
[150]  independence   or   their   autonomy,   if    they   cannot   be   settled   amicably, 
shall  be-  submitted  to  the  judgment  of   two  arbitrators,   of   which  one 
shall  be  appointed  by  each  of  the  two  Governments.     In  case  of  difference  of 
opinion  between  the  two  arbitrators,  the  latter  shall  designate  by  common 
agreement  a  third  who  shall  decide. 

3.  Netherlands  and  Roumania.  Treaty  of  Commerce  and  Navigation  of 
March  15,  1899.    Article  6: 

Every  question  or  difference  regarding  the  interpretation,  application,  or 
execution  of  the  present  Convention,  if  it  can  not  be  settled  amicably,  shall 
be  submitted  to  the  decision  of  a  commission  of  three  arbitrators.  Each  of 
the  two  high  contracting  Parties  shall  designate  one  arbitrator,  and  these 
two  arbitrators  shall  name  the  third.  If  they  can  not  agree  upon  the  choice, 
the  third  arbitrator  shall  be  named  by  the  Government  of  a  third  State  desig- 
nated by  the  two  high  contracting  Parties. 

Portugal 

1.  Portugal  and  Great  Britain.     Anglo-Portuguese  modus  vivendi  of  May 

31,  1893.     (Delimitation  of  possessions  in  East  Africa.) 

2.  Portugal  and  Netherlands.  Convention  of  June  10,  1893.  Article  7 
(clause  of  limited  arbitration)  and  Declaration  of  July  5,  1894  (clause  of  general 
arbitration). 

3.  Portugal  and  Norway.  Treaty  of  Commerce  of  December  31,  1895. 
(Reproduced  under  the  heading,  "  Norway.") 

Roumania 

1.    Roumania  and  Italy.    Consular  Convention  of  August  17,  1880.    Article 

32.  (Reproduced  under  the  heading,  "  Italy.") 


SEVENTH  MEETING,  JULY  25,  1899:  ANNEXES  205 

2.  Roumania  and  Switzerland.  Treaty  of  Commerce  of  February  19/ 
March  3,  1893.     Article  7:  ' 

The  high  contracting  Parties  agree  to  settle,  should  the  case  arise,  by- 
means  of  arbitration  the  questions  concerning  the  application  and  interpre- 
tation of  the  present  Convention  which  can  not  be  settled  to  their  mutual 
satisfaction  by  the  direct  means  of  diplomatic  negotiation. 

3.  Roumania  and  Netherlands.  Treaty  of  Commerce  and  Navigation  of 
March  15,  1899.     Article  6.     (Reproduced  under  the  heading,  "Netherlands.") 

Siam 

Five  treaties  concluded  by  the  Siamese  Government  contain  a  clause  of 
arbitration : 

1.  Siam  and  Sweden  and  Norway.  Treaty  of  Friendship,  Commerce,  and 
Navigation  of  May  18,  1868.  Article  25.  (Text  identical  with  Article  26  of  the 
treaty  between  Austria-Hungary  and  Siam.  Reproduced  under  the  heading, 
"  Austria-Hungary.") 

2.  Siam  and  Belgium.  Treaty  of  Friendship  and  Commerce  of  August  29, 
1868.     (Reproduced  under  the  heading,  "  Belgium.") 

3.  Siam  and  Italy.  Treaty  of  Friendship,  Commerce,  and  Navigation  of 
October  3,  1868.     Article  27.     (Reproduced  under  the  heading,  "  Italy.") 

4.  Siam  and  Austria-Hungary.  Treaty  of  Commerce  of  May  17,  1869. 
Article  26.     (Reproduced  under  the  heading,  "Austria-Hungary.") 

5.  Siam  and  Japan.  Treaty  of  Friendship,  Commerce,  and  Navigation  of 
February  25,  1898.  Article  3  of  the  annexed  protocol.  (Reproduced  under  the 
heading,  "Japan.") 

Sweden 

1.  Sweden  and  Norway  and  Siam.  Treaty  of  Friendship,  Commerce,  and 
Navigation  of  May  18,  1868.  Article  24.  (Text  identical  with  Article  26  of 
the  treaty  with  Austria-Hungary.  Reproduced  under  the  heading,  "  Austria- 
Hungary.") 

2.  Sweden  and  Norway  and  Mexico.    Treaty  of  Commerce  of  July  29, 
[151]   1885.     Article  26.     (Reproduced  under  the  heading,  "  Norway.") 

3.  Sweden   and   Norway  and    Spain.     Declaration   of   June  23,    1887, 
Article  2.     (Reproduced  under  the  heading,  "  Spain.") 

4.  Sweden  and  Spain.  Diplomatic  notes  of  January  27,  1892,  and  August 
9,  1893,  respecting  the  application  of  the  principle  of  arbitration,  as  regulated 
by  the  Declaration  of  June  23,  1887,  to  the  Conventions  of  January  24,  1892,  and 
June  27,  1892,  respecting  the  commercial  relations  of  the  two  countries. 

5.  Sweden  and  Belgium.  Treaty  of  Commerce  and  Navigation  of  June  11, 
1895.    Article  20.     (Reproduced  under  the  heading,  "  Belgium.") 

6.  Sweden  and  Norway  and  Chile.  Declaration  of  July  6,  1895.  (Repro- 
duced under  the  heading,  "  Norway.") 

Switzerland 

1.  Switzerland  and  Hawaii.  Treaty  of  Friendship,  Establishment,  and 
Commerce  of  July  20,  1864.  Article  12.  (Text  similar  to  that  of  the  treaty 
between  Belgium  and  Hawaii.     Reproduced  under  the  heading,  "  Belgium.") 


206  PLENARY  CONFERENCE 

2.  Switzerland  and  Salvador.  Treaty  of  Friendship,  Establishment,  and 
Commerce  of  October  30,  1883.     Article  13 : 

In  case  a  difference  should  arise  between  the  two  contracting  countries 
and  can  not  be  amicably  arranged  through  diplomatic  correspondence  between 
the  two  Governments,  the  latter  agree  to  submit  it  to  the  judgment  of  an 
arbitral  tribunal,  whose  decision  they  engage  to  respect  and  execute  loyally. 

The  arbitral  tribunal  shall  be  composed  of  three  members.  Each  of  the 
two  States  shall  designate  one  of  them  chosen  outside  of  its  nationals  and  the 
inhabitatnts  of  the  country.  The  two  arbitrators  shall  name  the  third.  If 
they  can  not  agree  on  this  choice,  the  third  arbitrator  shall  be  named  by  a 
Government  designated  by  the  two  arbitrators,  or,  in  the  absence  of  agree- 
ment, by  lot. 

3.  Switzerland  and  the  South  African  Republic.  Treaty  of  Friendship, 
Establishment,  and  Commerce  of  November  6,  1885.  Article  11.  (Text  identical 
with  that  of  No.  2.) 

4.  Switzerland  and  Ecuador.  Treaty  of  Friendship,  Establishment,  and 
Commerce  of  June  22,  1888.     Article  4.     (Text  identical  with  that  of  No.  2.) 

5.  Switzerland  and  Independent  State  of  the  Kongo.  Treaty  of  Friendship, 
Establishment,  and  Commerce  of  November  16,  1889.  Article  13.  (Text  iden- 
tical with  that  of  No.  2.) 

6.  Switzerland  and  Italy.  Treaty  of  Commerce  of  April  19,  1892.  Article 
14.     (Reproduced  iinder  the  heading  "  Italy.") 

7.  Switzerland  and  Roumania.  Treaty  of  Commerce  of  February  19/ 
March  3,  1893.     Article  7.     (Reproduced  under  the  heading,  "  Roumania.") 

8.  Switzerland  and  Norway.  Treaty  of  Commerce  and  Establishment  of 
March  22,  1894.    Article  7.     (Reproduced  under  the  heading,  "  Norway.") 


[152]  EIGHTH  MEETING 

JULY  27,  1899 


His  Excellency  Mr.  Staal  presiding. 

The  President  states  that  the  minutes  of  the  meeting  of  July  25  have  not 
yet  been  printed  and  the  Conference  would  like  to  leave  the  care  of  approving, 
them  to  the  Bureau. 

The  printed  proofs  thereof  will  be  distributed  as  soon  as  possible. 

The  President  then  gives  the  floor  to  Mr.  Renault  to  present  an  oral 
report  on  the  work  of  the  Drafting  Committee  of  the  Final  Act. 

Mr.  Renault  states  that  it  is  his  duty  to  give  brief  account  of  the  proposi- 
tions which  the  Committee  submits  to  the  Conference  concerning:  (l),the  Con- 
vention relating  to  the  laws  and  customs  of  war  on  land;  (2)  the  Convention 
for  the  adaptation  to  maritime  warfare  of  the  principles  of  the  Geneva  Convention 
of  August  22,  1864;  (3)  the  three  Declarations  concerning  the  prohibition  of 
asphyxiating  projectiles,  the  discharge  of  explosives  from  balloons,  and  the  use 
of  bullets  which  expand  in  the  human  body. 

The  Drafting  Committee  has  inserted  each  of  these  decrees  of  the  Con- 
ference between  a  preamble  and  final  clauses. 

In  the  matter  of  the  first  Convention,  relating  to  the  laws  of  war  on  land, 
the  drafters  of  the  preamble  have  endeavored  to  combine  the  object  of  the 
Convention  with  the  object  of  the  Conference.  It  has  been  their  desire  thus  to 
form  a  link  between  this  work  and  the  work  accomplished  at  Brussels  twenty- 
five  years  ago,  also  a  result  of  the  initiative  of  the  Russian  Government.  Finally, 
there  has  been  incorporated  in  this  preamble  the  declaration  made  by  Mr. 
Martens,  as  unanimously  voted  by  the  Second  Commission  and  by  the  Con- 
ference.   The  following  text  was  adopted : 

Considering  that,  while  seeking  means  to  preserve  peace  and  prevent  armed  conflicts 
between  nations,  it  is  Hkewise  necessary  to  bear  in  mind  the  case  where  an  appeal  to  arms 
may  be  brought  about  by  events  which  their  solicitude  could  not  avert; 

Animated  by  the  desire  to  serve,  even  in  this  extreme  case,  the  interests  of  humanity 
and  the  ever  progressive  needs  of  civilization ; 

Thinking  it  important,  with  this  object,  to  revise  the  general  laws  and  customs  of  war,, 
either  with  a  view  of  defining  them  with  greater  precision  or  of  confining  them  within 
such  limits  as  would  mitigate  their  severity  as  far  as  possible; 

Inspired  by  these  views  which  are  enjoined  at  the  present  day,  as  they  were  twenty- 
five  years  ago  at  the  time  of  the  Brussels  Conference  in  1874,  by  a  wise  and  generous 
foresight ; 

Have,  in  this  spirit,  adopted  a  great  number  of  provisions,  the  object  of  which  is  to 
define  and  govern  the  usages  of  war  on  land. 

According  to  the  views  of  the  high  contracting  Parties,  these  provisions,  the  wording^ 
of  which  has  been  inspired  by  the  desire  to  diminish  the  evils  of  war,  so  far  as  military 

207 


208  PLENARY  CONFERENCE 

requirements  permit,  are  intended  to  serve  as  a  general  rule  of  conduct  for  the  belligerents 
in  their  mutual  relations  and  in  their  relations  with  inhabitants. 

It  has  not,  however,  been  found  possible  at  present  to  concert  regulations  covering  all 
the  circumstances  which  arise  in  practice. 

On  the  other  hand,  the  high  contracting  Parties  clearly  do  not  intend  that  unforeseen 
cases  should,  in  the  absence  of  a  written  undertaking,  be  left  to  the  arbitrary  judgment  of 
military  commanders. 

Until  a  more  complete  code  of  the  laws  of  war  has  been  issued,  the  high  contracting 
Parties  deem  it  expedient  to  declare  that,  in  cases  not  included  in  the  Regulations  adopted 
by  them,  the  inhabitants  and  the  belligerents  remain  under  the  protection  and  the  rule  of 
the  principles  of  the  law  of  nations,  as  they  result  from  the  usages  established  among 
civilized  peoples,  from  the  laws  of  humanity,  and  the  dictates  of  the  public  conscience. 

They  declare  that  it  is  in  this  sense  especially  that  Articles  1  and  2  of  the  Regulations 
adopted  must  be  understood. 

The  high  contracting  Parties,  wishing  to  conclude  a  Convention  to  this  effect,  have 
appointed  the  following  as  their  plenipotentiaries,  to  wit :  .    .   . 
[153]    Who,  after  communication  of  their  full  powers,  found  in  good  and  due  form,  have 
agreed  upon  the  following: 

Mr.  Renault,  before  reading  the  five  articles  which  follow  this  preamble, 
explains  that  the  Drafting  Committee  is  of  the  opinion  that  it  is  preferable  not 
to  incorporate  in  the  Convention  itself  the  text  of  the  sixty  articles  adopted  relat- 
ing to  the  laws  and  customs  of  war,  but  to  give  them  the  form  of  separate 
Regulations,  which  should  be  annexed  to  the  Convention.  It  goes  without  saying 
that  this  method  of  procedure  does  not  render  the  rules  contained  in  this  annex 
any  the  less  binding,  and  that  its  only  object  is  to  prevent  the  awakening  of 
certain  susceptibilities.  In  this  way  it  is  clearly  brought  out  that  these  rules  are 
not  a  recognition  of  the  right  of  force.  Each  Power  merely  engages  to  limit 
the  action  of  its  troops  in  case  of  war. 

Consequently,  the  five  articles  will  have  the  following  form : 

Article  1 
The  high  contracting  Parties  shall  issue  instructions  to  their  armed  land  forces,  which 
.^hall  be  in  conformity  with  the  "  Regulations  respecting  the  laws  and  customs  of  war  on 
land  "  annexed  to  the  present  Convention. 

Article  2 

The  provisions  contained  in  the  Regulations  referred  to  in  Article  1  are  only  binding 
on  the  contracting  Powers,  in  case  of  war  between  two  or  more  of  them. 

These  provisions  shall  cease  to  be  binding  from  the  time  when,  in  a  war  between  con- 
tracting Powers,  a  non-contracting  Power  joins  one  of  the  beUigerents. 

Article  3 

The  present  Convention  shall  be  ratified  as  speedily  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  proces-verbal  shall  be  drawn  up  recording  the  receipt  of  each  ratification,  and  a 
-copy,  duly  certified,  shall  be  sent,  through  the  diplomatic  channel,  to  all  the  contracting 
Powers. 

Article  4 

Non-signatory  Powers  are  allowed  to  adhere  to  the  present  Convention. 

For  this  purpose  they  must  make  their  adhesion  known  to  the  contracting  Powers  by 
means  of  a  written  notification,  addressed  to  the  Netherland  Government,  and  by  it  com- 
inunicated  to  all  the  other  contracting  Powers. 


EIGHTH  MEETING,  JULY  27,  1899  209 

Article  5 

In  the  event  of  one  of  the  high  contracting  Parties  denouncing  the  present  Convention, 
such  denunciation  would  not  take  effect  until  a  year  after  the  written  notification  made 
to  the  Netherland  Government,  and  by  it  at  once  communicated  to  all  the  other  contracting 
Powers. 

Ihis  denunciation  shall  have  effect  only  in  regard  to  the  notifying  Power. 

In  faith  of  which  the  plenipotentiaries  have  signed  the  present  Convention  and  have 
affixed  their  seals  thereto. 

Done  at  The  Hague,  the  .  .  .  one  thousand  eight  hundred  and  ninety-nine,  in  a  single 
original,  which  shall  remain  deposited  in  the  archives  of  the  Netherland  Government, 
and  copies  of  which,  duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  the 
contracting  Powers.  _ 

In  so  far  as  Article  2  is  concerned,  Mr.  Renault  observes  that  it  merely 
sanctions  the  common  law  in  the  matter  of  the  binding  effect  of  the  Regulations, 
w^hich  can  concern  the  contracting  Powers  only  in  their  relations  with  each 
other.    The  same  rules  are  to  be  found  in  the  Declaration  of  St.  Petersburg. 

Article  3  contains  the  usual  clauses  in  the  matter  of  ratification.  The  form 
of  the  deposit  of  ratifications  has,  however,  been  simplified.  It  was  not  necessary 
to  reserve  the  right  of  parliaments  to  intervene ;  each  sovereign  or  head  of  a 
State  must  decide  to  what  extent  he  is  free  to  ratify  the  Convention — whether  he 
requires  the  authorization  of  the  parliament  in  order  to  ratify,  or  the  passage  of  a 
law  to  give  effect  to  the  Convention. 

Article  4  concerns  adhesion.  The  question  arose  as  to  whether  the  Con- 
vention should  be  open  or  closed.  After  a  little  hesitation,  the  first  of  the  two 
solutions  was  decided  upon,  and  it  was  decided  that  all  States,  even  those  not 
represented  here  and  those  that  have  not  signed  the  Convention,  might  sign 
it  later.  The  simplest  possible  method  of  procedure  has  been  adopted  for  this 
adhesion. 

Article  5  concerns  denunciation.  It  is  evident  that  the  Convention  should  not 
be  a  perpetual  engagement.  What,  then,  should  the  procedure  be,  if  one  of  the 
contracting  Parties  desires  to  withdraw? 

Although,  in  principle,  this  last  hypothesis  should  not  be  provided  for,  it 
nevertheless  seemed  more  prudent  to  consider  it.  A  case  might  arise  where  a 
State,  on  the  eve  of  war,  might  suddenly  announce  its  intention  to  denounce 
[154]  the  Convention.  In  order  to  avoid  abuses  of  this  kind,  it  was  decided  to 
specify  the  method  of  procedure  in  the  matter  of  denunciation  in  a  clause 
tending  rather  to  restrict  its  effect  than  to  encourage  its  exercise.  Moreover,  States 
will  adhere  more  readily  to  a  contractual  engagement,  if  they  know  in  advance 
that,  according  to  the  letter  of  the  law,  they  may  free  themselves  at  a  given  time, 
without  making  their  denunciation  appear  almost  violent,  as  it  would  in  the 
absence  of  a  special  clause. 

The  President  asks  the  Conference  if  it  adopts  the  preamble  and  the  articles 
that  have  just  been  read  to  it  and  commented  upon. 

No  one  asking  the  floor,  the  President  declares  these  texts  adopted  by  the 
Conference. 

Mr.  Renault  passes  to  the  Convention  for  the  adaptation  to  naval  warfare 
of  the  principles  of  the  Geneva  Convention. 

He  says  that  the  preamble  of  this  Convention  recalls  by  its  form  and  modest 
proportions  that  of  the  Geneva  Convention  itself.    It  is  in  the  following  words : 


210  PLENARY  CONFERENCE 

Animated  alike  by  the  desire  to  diminish,  as  far  as  depends  on  them,  the  inevitable 
evils  inseparable  from  war,  and  wishing  with  this  object  to  adapt  to  maritime  warfare 
the  principles  of  the  Geneva  Convention  of  August  22,  1864,  have  resolved  to  conclude 
a  Convention  to  this  effect. 

They  have,  in  consequence,  appointed  as  their  plenipotentiaries,  to  wit :  .    ,   . 

Who,  after  communication  of  their  full  powers,  found  in  good  and  due  form,  have 
agreed  on  the  following  provisions : 

Here  follow  the  ten  articles  adopted  by  the  Conference,  which  have  been 
incorporated  in  the  Convention. 

Article  11  and  those  that  follow  only  repeat  the  clauses  of  the  Convention 
concerning  the  laws  of  war.    They  are  drawn  up  in  the  following  terms : 

Article  11 

The  rules  contained  in  the  above  articles  are  binding  only  on  the  contracting  Powers, 
in  case  of  war  between  two  or  more  of  them. 

The  said  rules  shall  cease  to  be  binding  from  the  time  when,  in  a  war  between  the 
contracting  Powers,  one  of  the  belligerents  is  joined  by  a  non-contracting  Power. 

Article  12 
The  present  Convention  shall  be  ratified  as  soon  as  possible. 
The  ratifications  shall  be  deposited  at  The  Hague. 

On  the  receipt  of  each  ratification  a  proces-verbal  shall  be  drawn  up,  a  copy  of  which, 
■duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  all  the  contracting  Powers. 

Article  13 

Non-signatory  Powers  which  have  accepted  the  Geneva  Convention  of  August  22, 
1864,  may  adhere  to  the  present  Convention. 

For  this  purpose  they  must  make  their  adhesion  known  to  the  contracting  Powers  by 
means  of  a  written  notification  addressed  to  the  Netherland  Government,  and  by  it  com- 
municated to  all  the  other  contracting  Powers. 

Article  14 

In  the  event  of  one  of  the  high  contracting  Parties  denouncing  the  present  Conven- 
tion, such  denunciation  shall  not  take  effect  until  a  year  after  the  notification  made  in 
writing  to  the  Netherland  Government,  and  forthwith  communicated  by  it  to  all  the  other 
contracting  Powers. 

This  denunciation  shall  have  effect  only  in  regard  to  the  notifying  Power. 

In  faith  of  which  the  respective  plenipotentiaries  have  signed  the  present  Convention 
and  have  affixed  their  seals  therto. 

Done  at  The  Hague,  the  .  .  .  one  thousand  eight  hundred  and  ninety-nine,  in  a 
single  original,  which  shall  remain  deposited  in  the  archives  of  the  Netherland  Government, 
and  copies  of  which,  duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  the 
contracting  Powers. 


Mr.  Renault  points  out  the  fact  that  Article  13  alone  presents  a  slight 
difference  in  the  matter  of  adhesion. 

It  is  clear  that,  in  order  to  adhere  to  stipulations  which  are  based  upon  the 
Geneva  Convention,  that  Convention  itself  must  first  have  been  accepted.  It 
cannot  be  considered  restrictive,  since,  inasmuch  as  the  Geneva  Convention  is 
open,  nothing  is  easier  than  to  adhere  to  it  first,  according  to  the  form  provided 


EIGHTH  MEETING,  JULY  27,  1899  211 

by  that  Convention  itself,  and  to  accede  then  to  the  Hague  Convention,  in  con- 
formity with  Article  13. 

The  President  asks  the  Conference  whether  it  adopts  the  preamble  and  final 
provisions  that  have  just  been  read  to  it. 

These  texts  are  adopted  without  discussion. 

Mr.  Renault  then  passes  to  the  three  Declarations. 

He  explains  that  these  Declarations  are  preceded  by  a  very  simple  preamble 
which  is  identical  for  all  of  them.    It  is  in  these  terms: 

The  undersigned,  plenipotentiaries  of  the  Powers  represented  at  the  International  Peace 
Conference  at  The  Hague,  duly  authorized  to  that  effect  by  their  Governments, 

Inspired  by  the  sentiments  which  found  expression  in  the  Declaration  of  St.  Petersburg 
of  November  29/December  11,  1868, 

Declare  .   .   .  etc. 

[155]  Mr.  Renault  points  out  that  the  form  of  this  preamble  does  not  imply  the 
adhesion  of  the  signatory  States  to  the  Convention  of  St,  Petersburg  of 
1868.  It  means  merely  that  these  States,  even  though  they  have  not  signed  the 
said  Convention,  nevertheless  consider  it  wise  "  to  be  inspired  by  the  sentiments 
which  found  expression  in  the  Declaration  of  St.  Petersburg."  They  are  free, 
if  they  so  desire,  to  complete  at  some  future  time  this  manifestation  of  their 
sentiments  by  formally  adhering  to  the  Convention  of  1868. 

As  to  the  final  clauses,  they  are  likewise  identical  in  the  three  Declarations 
and  they  correspond  exactly  with  the  final  provisions  of  the  Conventions  relating 
to  the  laws  of  war  and  the  "  Red  Cross." 

They  are  thus  formulated: 

The  present  Declaration  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  proces-verhal  shall  be  drawn  up  on  the  receipt  of  each  ratification,  a  copy  of 
which,  duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  all  the  contracting 
Powers. 

Non-signatory  Powers  may  adhere  to  the  present  Declaration.  For  this  purpose  they 
must  make  their  adhesion  known  to  the  contracting  Powers  by  means  of  a  written  notifi- 
cation addressed  to  the  Netherland  Government,  and  by  it  communicated  to  all  the  other 
contracting  Governments. 

In  the  event  of  one  of  the  high  contracting  Parties  denouncing  the  present  Declaration, 
such  denunciation  shall  not  take  effect  until  a  year  after  the  notification  made  in  writing 
to  the  Netherland  Government,  and  by  it  forthwith  communicated  to  all  the  other  con- 
tracting Powers. 

This  denunciation  shall  have  effect  only  in  regard  to  the  notifying  Power. 

In  faith  of  which  the  plenipotentiaries  have  signed  the  present  Declaration,  and  have 
affixed  their  seals  thereto. 

Done  at  The  Hague,  the  .  .  .  one  thousand  eight  hundred  and  ninety-nine,  in  a 
single  original,  which  shall  remain  deposited  in  the  archives  of  the  Netherland  Government, 
and  copies  of  which,  duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  the 
contracting  Powers. 

Finally,  Mr.  Renault  reads  the  text  of  each  Declaration,  as  it  will  appear 
between  the  preamble  and  the  final  clauses. 


212  PLENARY  CONFERENCE 

First  Declaration 

The  contracting  Powers  agree  to  abstain  from  the  use  of  projectiles  the  only  object  of 
which  is  the  diflfusion  of  asphyxiating  or  deleterious  gases. 

Second  Declaration 

The  contracting  Powers  agree  to  abstain  from  the  use  of  bullets  which  expand  or 
flatten  easily  in  the  human  body,  such  as  bullets  with  a  hard  envelope  which  does  not  entirely 
cover  the  core  or  is  pierced  with  incisions. 

Third  Declaration 

The  contracting  Powers  agree  to  prohibit,  for  a  term  of  five  years,  the  discharge  of 
projectiles  and  explosives  from  balloons,  or  by  other  new  methods  of  a  similar  nature. 

On  the  motion  of  the  President,  the  Conference  adopts  all  of  these  pro- 
visions. 

Count  de  Grelle  Rogier  makes  the  following  declaration: 

At  the  moment  of  closing  the  work  of  the  Conference,  I  ask  the  oppor- 
[156]  tunity  of  stating  precisely  the  conditions  under  which  the  Belgian  Govern- 
ment undertakes  to  give  its  full  and  entire  adhesion  to  the  various  pro- 
visions of  the  draft  Convention  for  the  pacific  settlement  of  international  dis- 
putes. 

Belgium  is  happy  to  join  in  all  measures  that  are  of  a  nature  to  facilitate 
the  development  of  the  idea  of  peace,  the  bringing  of  peoples  towards  the  noble 
and  elevated  end  whose  path  has  been  outlined  for  us  by  an  august  initiative. 
Like  all  the  Powers  here  represented,  she  is  on  the  eve  of  contracting  obligations 
defined  notably  by  Articles  2  and  3  of  the  draft  Convention  relative  to  mediation 
and  arbitration. 

It  seems  to  me  necessary  to  formulate,  on  this  occasion,  certain  reservations 
of  a  character  otherwise  general,  based  on  the  special  position  that  my  country 
occupies  in  European  public  law  by  reason  of  its  status  of  perpetual  neutrality. 

It  will  suffice  for  me  to  recall  that  the  treaty  of  April  19,  1839,  created 
rights  and  duties  between  Belgium  and  the  Powers  guaranteeing  her  neutrality. 

These  rights,  and  the  obligations  which  are  derived  from  them,  must  remain 
intact  and  the  engagements  that  Belgium  is  ready  to  sign  to-day,  having  in  view 
the  settlement  of  international  disputes,  cannot  at  any  time  affect  them. 

I  beg  the  Conference  kindly  to  record  this  declaration,  the  meaning  of  which, 
I  have  no  doubt,  will  be  easily  understood  and  accepted. 

Record  is  made  of  the  declaration  of  Count  de  Grelle  Rogier. 

His  Excellency  Mr.  Eyschen  remarks  that  on  several  occasions  it  has  been 
stated  that  the  Convention  to  be  concluded  at  The  Hague  could  not  modify  prior 
organic  treaties  of  states.  The  Treaty  of  London  of  May  11,  1867,  imposes  on 
Luxemburg  the  mandate  of  a  permanent  neutrality  which  enjoys  the  collective 
guaranty  of  the  Powers.  The  new  stipulations  merely  augment  and  cannot  di- 
minish the  advantages  derived  from  the  old  treaties. 

In  so  far  as  is  necessary,  Luxemburg  makes  the  same  reservations  as 
Belgium. 

Record  is  made  of  the  declaration  of  his  Excellency  Mr.  Eyschen. 


EIGHTH  MEETING,  JULY  27,  1899  213 

Mr.  Delyanni  makes  the  following  declaration : 

On  the  occasion  of  the  declaration  concerning  the  prohibition  of  the  use 
of  bullets  which  expand  or  flatten  easily  in  the  human  body,  such  as  bullets  with  a 
hard  envelope,  of  which  the  envelope  does  not  entirely  cover  the  core  or  is  pierced 
with  incisions,  I  believe  it  my  duty  to  declare,  in  the  name  of  my  Government,  that 
I  will  sign  this  declaration  with  the  express  reservation  that  the  bullets  of  the 
Gras  rifle  still  in  use  in  the  Greek  army  is  not  included  in  this  category,  and 
that  we  cannot  make  any  promise  concerning  the  prohibition  of  their  use  in 
case  of  war. 

I  ask  the  Conference  to  record  my  declaration  which  will  be  written  in  the 
minutes  of  the  current  meeting. 

Record  is  made  of  the  declaration  of  Mr.  Delyanni. 

Lou  Tseng-tsiang  makes  the  following  declaration  in  the  name  of  the  first 
delegate  of  China: 

At  the  moment  when  the  work  of  the  Conference  is  about  to  be  crowned 
by  the  signature  of  the  Final  Act,  the  first  delegate  of  China  has  the  honor  to 
state  to  the  Conference  his  position  as  the  first  delegate  of  China. 

Through  the  intermediary  of  his  colleagues,  he  has  followed  with  attention 
and  interest  the  deliberations  of  the  different  commissions  of  which  he  has  had 
the  honor  to  be  a  member. 

In  the  purely  humanitarian  questions  on  the  subject  of  war  with  which  the 
commissions  have  been  charged,  he  has  given  without  hesitation  his  adhesion 
to  the  proposals  of  the  delegates  of  the  Powers  invited  to  this  high  assembly. 

Sometimes,  he  has  believed  that  the  acceptance  of  one  or  another  proposal 
would  not  be  to  the  advantage  of  China ;  he  has,  conformably  to  his  general 
instructions,  given  his  vote  against  the  form  in  which  it  was  advanced,  but,  when 
the  desired  form  was  obtained,  he  rallied  to  his  colleagues  in  order  to  assure 
unanimity. 

Now,  at  the  moment  when  the  Convention  is  about  to  take  its  final  form 
in  the  Final  Act,  he  can  only  confine  himself,  according  to  his  instructions,  to 
having  a  careful  translation  made  of  it,  to  be  sent,  with  the  original  text  of  the 
Convention,  to  the  Imperial  Government  with  the  recommendation  to  accept  it. 

In  spite  of  the  delays  caused  by  long  distance,  he  hopes  that  he  will  receive 
in  good  time  the  necessary  instructions  to  enable  him  to  sign  this  Convention. 
(Applause.) 

Record  is  made  of  the  declaration  of  the  first  delegate  of  China. 

His  Excellency  Sir  Julian  Pauncefote  recalls  that  certain  provisions  adopted 
by  the  Conference  will  have  to  be  submitted  to  parliamentary  approval.  It  is 
therefore  well  understood  that  in  signing  them,  the  delegation  of  Great  Britain 

intends  to  reserve  entirely  such  approval. 
[157]   Mr.  Renault  says  that  he  took  occasion  in  his  statement  to  point  out  this 
fact  of  which  there  can  arise  no  doubt. 

His  Excellency  Count  Nigra  says  that  Italy  is  in  the  same  situation  as 
England  and  he  thinks  that  he  must  make  a  declaration  identical  with  that  of 
His  Excellency  Sir  Julian  Pauncefote. 

Mr.  Leon  Bourgeois  says  that  this  reservation  seemed  so  evident  to  him 
that  he  had  believed  it  unnecessary  to  formulate  it.  The  delegates  of  Great 
Britain  and  Italy  having  considered  that  they  should  make  it  the  subject  of  a 


214  PLENARY  CONFERENCE 

declaration,  he  can  only  join  them  in  stating  that  such  is  the  general  condition 
of  parliamentary  States. 

Count  de  Macedo  declares,  in  the  name  of  the  Portuguese  plenipotentiaries, 
that  in  view  of  the  limitations  of  their  full  powers,  in  the  case  where  these 
plenipotentiaries  intend  to  sign  one  or  more  of  the  Conventions  and  Declarations 
annexed  to  the  Final  Act,  their  signatures  afifixed  after  the  respective  instruments 
must  only  be  considered  as  ad  referendum. 

The  declaration  of  Count  de  Macedo  is  recorded. 

The  meeting  adjourns. 


NINTH  MEETING 

JULY  28,  1899 


His  Excellency  Mr.  Staal  presiding. 

The  meeting  opens  at  3  o'clock. 

The  President  states  that  the  minutes  of  the  meetings  of  July  25  and  27 
have  been  distributed  in  proof-sheets  and  he  begs  the  delegates  kindly  to  return 
their  copies  to  the  secretariat  as  soon  as  possible  with  the  necessary  corrections. 

Mr.  Renault  presents,  in  the  name  of  the  Drafting  Committee  of  the  Final 
Act,  an  oral  report  on  the  preamble  and  the  final  provisions  of  the  "  Convention 
for  the  pacific  settlement  of  international  disputes." 

He  says  that  the  preamble  merely  repeats  in  a  way  the  headings  of  the  chap- 
ters of  the  Convention.  The  text  is  the  work  of  the  eminent  reporter  of  the 
Third  Commission.     Therefore,  it  is  unnecessary  to  speak  of  it  at  any  length. 

The  final  clauses  are  contained  in  Articles  58  to  61. 

Article  58,  which  concerns  ratification,  and  Article  61,  which  contemplates 
denunciation,  are  merely  repetitions  of  provisions  of  the  same  kind  inserted  in 
the  Conventions  relating  to  the  "  laws  and  customs  of  war  on  land  "  and  "  adap- 
tation to  naval  warfare  of  the  principles  of  the  Geneva  Convention  of  1864." 
They  are  indentical  and  concordant  provisions.  It  is  only  necessary  to  refer 
back  to  the  explanations  previously  given. 

Articles  59  and  60  govern  the  matter  of  adhesion.  They  diflfer  from  the  final 
clauses  oi  the  other  Conventions,  which  are  absolutely  open  except  for  the  slight 
difference  which  has  already  been  indicated  with  respect  to  the  Convention  relating 
to  the  Red  Cross. 

The  present  Convention  contemplates  two  different  conditions:  a  distinction 
has  been  made  between  Powers  represented  at  the  Conference  and  those  which 
are  not.    Articles  59  and  60  provide  for  these  two  conditions. 

The  Powers  represented  at  The  Hague  have  two  methods  of  becoming 
contracting  parties:  they  may  sign  immediately,  or  before  December  31,  1899. 
After  that  date,  they  will  have  to  adhere  to  the  Convention;  but  they  have  the 
right  so  to  do.  Their  adhesion  is  subject  to  the  same  rules  as  those  which  govern 
the  other  two  Conventions.    This  is  the  object  of  Article  59. 

Article  60  provides  for  the  case  of  Powers  not  represented  at  the  Conference. 
Such  Powers  may  adhere  to  the  Convention,  but  the  conditions  of  their  adhesion 
are  reserved  for  a  future  agreement  between  the  contracting  Powers.    They,  there- 
fore, have  not  the  same  right  as  is  recognized  with  respect  to  the  Powers 
[158]  represented. 

This  very  simple  solution  was  not  reached  in  a  very  simple  way.  It  gave 
rise  to  lively  and  lengthy  discussions,  which  changed  the  modest  character  of 
the  Drafting  Committee  and  caused  it  to  take  up  questions  which  were  diplomatic 

215 


216  PLENARY  CONFERENCE 

and  political  rather  than  questions  of  style  and  wording.  The  reporter  believes 
that  he  cannot  better  state  the  different  systems  which  were  upheld  in  the  com- 
mittee than  by  repeating  to  the  Conference  the  following  address,  delivered  at 
the  last  session  of  the  committee  by  Mr.  Asser,  its  president,  which  summarizes 
most  completely  the  origin  of  Article  60. 

Gentlemen  :  The  discussions  of  international  gatherings  like  our  Con- 
ference assume  at  times  the  character  of  parliamentary  debates,  at  others 
that  of  diplomatic  negotiations. 

In  the  matter  with  which  the  Drafting  Committee  has  had  to  deal  these 
last  few  days,  our  debates  have  assumed  the  latter  character. 

The  result  is  that,  on  the  one  hand,  the  individual  opinions  of  the 
members  of  our  committee  and  of  the  delegates  who  have  been  good  enough 
to  lend  us  their  aid  are  subject — still  more  than  in  discussions  of  a  different 
nature — to  the  sanction  of  the  Governments ;  and,  on  the  other  hand,  to  reach 
a  practical  result  unanimity  is  indispensable. 

If,  from  this  double  point  of  view,  we  consider  the  impression  which  the 
discussions  of  these  last  few  days  are  bound  to  make,  I  believe  I  may  state 
that  all  of  us  (delegates  and  Governments)  desire  that  it  may  be  possible 
to  bring  about  adhesion  to  the  Convention  relating  to  the  pacific  settlement  of 
international  disputes  by  Powers  who  have  not  taken  part  in  the  Peace  Con- 
ference ;  but  that,  at  the  same  time,  there  exists  a  great  difference  of  opinion 
as  to  whether  the  right  to  adhere  should  be  granted  absolutely  or  should  be 
dependent  upon  certain  conditions ;  and,  in  the  latter  case,  what  these  condi- 
tions should  be. 

On  the  one  hand,  it  was  warmly  argued  that  the  Convention  with  which 
we  are  dealing  should  be  completely  assimilated  to  the  other  Conventions,  the 
text  of  which  has  been  decided  upon  by  the  Conference — which  assimilation 
was,  indeed,  voted  by  the  committee  of  examination  of  the  Third  Commission. 

This  implied  the  absolute  right  of  all  Powers  to  adhere  to  the  Convention 
by  means  of  a  simple  declaration. 

On  the  other  hand,  it  was  maintained  that  this  right  should  depend 
either  on  the  express  consent  of  all  the  contracting  States,  or  on  their  tacit 
consent,  which  they  would  be  considered  to  have  given  if,  within  a  fixed 
time,  no  Power  opposed  the  adhesion ;  or,  lastly,  on  the  consent  of  a  majority, 
in  the  sense  that  the  adhesion  should,  in  case  of  opposition,  be  sanctioned  by 
a  vote  of  the  Permanent  Council,  composed  of  all  the  diplomatic  representa- 
tives of  the  Powers  accredited  to  The  Hague,  a  proposition  which  I  had  the 
honor  of  submitting  to  you,  in  the  name  of  my  Government,  in  order  that  no 
one  Power  might  be  given  the  right  of  veto  in  this  matter. 

Lastly,  it  was  proposed  that  in  case  of  opposition  to  the  request  for 
permission  to  adhere,  the  adhesion  would  affect  only  the  Powers  that  had 
given  their  consent. 

I  cannot  now  repeat  ihe  arguments  which  were  developed  in  favor  of 
each  of  these  systems. 

I  shall  confine  myself  to  stating  that  we  have  been  unable  to  find  a 
common  ground  for  a  unanimous  agreement  and  that  it  is  materially  impos- 
sible, in  the  short  time  we  still  have,  to  reach  such  an  agreement,  especially 
since  several  delegates  have  not  received  specific  instructions  upon  this  point. 

There  is  nothing  left  for  us  to  do,  therefore,  but  to  choose  between  the 
two  following  systems : 

Either  to  omit  purely  and  simply  the  clause  concerning  the  adhesion  of 
Powers  not  represented ; 

Or,  admitting  the  principle  of  their  right  to  adhere,  to  leave  it  for  a 


NINTH  MEETING,  JULY  28,  1899  217 

future  agreement  between  the  Powers  to  determine  the  conditions  under 
which  adhesion  may  take  place. 

I  venture  to  point  out  that  it  would  appear  from  the  discussions  that  the 
latter  solution  should  be  adopted. 

It  has  been  recognized  by  all  that  it  is  desirable  to  open  the  door  to 
Powers  that  are  not  represented.  If  the  Convention  remained  silent  upon 
this  point,  it  would  by  that  very  fact  be  a  closed  convention,  a  thing  which 
we  do  not  desire.  If,  on  the  contrary,  it  provides  for  a  future  agreement, 
such  a  provision  is  in  effect  an  expression  of  the  hope  that  this  agreement 
can  be  brought  about. 

We  are  all  persuaded  that  the  Powers  will  endeavor  to  proceed  with  the 
greatest  diligence,  but  we  also  know  that  ratifications  cannot  be  obtained 
1159]  between  to-day  and  to-morrow.  Let  us  hope  that  the  time  which  elapses 
between  now  and  ratification  by  the  Powers  will  serve  to  lessen  the  diffi- 
culties, which  at  present  still  exist,  and  that  we  shall  be  more  and  more 
convinced  that  the  very  nature  of  the  Convention  in  question  seems  to  admit 
of  a  broad  and  liberal  system  in  the  matter  of  the  right  to  adhere. 

The  object  of  the  Convention  is  the  peaceful  settlement  of  international 
disputes,  and  it  determines  the  means  of  assuring  such  a  result. 

Well!  the  authors  of  this  Convention  must  necessarily  desire  that  all 
Powers,  even  those  which  are  not  represented  here,  join  in  this  work  of 
general  interest. 

Now  especially,  since  the  Convention  contains  no  clause  concerning  com- 
pulsory arbitration,  they  must  desire  that,  in  case  of  a  dispute  between 
Powers  not  represented  at  the  Conference,  or  between  one  of  them  and  a 
Power  which  is  represented,  the  Convention  may  bear  the  same  fruits  as 
when  there  is  a  dispute  between  contracting  Powers. 

Mr.  Renault  says  that  this  address  of  Mr.  Asser  is  the  best  exposition  of 
the  reasons  that  he  can  give,  and  that  he  will  add  nothing  further  to  the  com- 
mentary upon  the  form  and  subject-matter  of  the  initial  and  final  clauses  of  the 
various  Conventions,  which  he  has  been  charged  to  submit. 

The  President  takes  the  initiative  in  tendering  the  thanks  of  the  Conference 
to  Mr.  Renault  for  the  excellent  report  which  he  has  presented. 

The  preamble  and  the  final  provisions  of  the  Convention,  which  are  adopted 
without  discussion,  are  read  in  the  following  terms: 

His  Majesty  etc.,  etc. 

(Nomenclature  of  the  sovereigns  and  heads  of  States  in  conformity  with  the  list  ap- 
proved by  the  Conference  and  annexed  to  the  present  minutes.) 

Animated  by  a  strong  desire  to  work  for  the  maintenance  of  general  peace; 

Resolved  to  promote  by  their  best  eflforts  the  friendly  settlement  of  international 
•disputes ; 

Recognizing  the  solidarity  uniting  the  members  of  the  society  of  civilized  nations ; 

Desirous  of  extending  the  empire  of  law,  and  strengthening  the  appreciation  of  inter- 
national justice; 

Convinced  that  the  permanent  institution  of  a  tribunal  of  arbitration,  accessible  to  all, 
in  the  midst  of  the  independent  Powers,  will  contribute  effectively  to  this  result; 

Having  regard  to  the  advantages  attending  the  general  and  regular  organization  of  the 
procedure  of  arbitration ; 

Sharing  the  opinion  of  the  august  initiator  of  the  International  Peace  Conference  that 
it  is  expedient  to  record  in  an  international  agreement  the  principles  of  equity  and  right 
on  which  are  based  the  security  of  States  and  the  welfare  of  peoples; 


218  PLENARY  CONFERENCE 

Being  desirous  of  concluding  a  Convention  to  this  effect,  have  appointed  as  their  pleni- 
potentiaries, etc.,  etc. 

Final   provisions 

Article  58 

The  present  Convention  shall  be  ratified  as  speedily  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  proces-verbal  shall  be  drawn  up  recording  the  receipt  of  each  ratification,  and  a  copjr 
duly  certified  shall  be  sent,  through  the  diplomatic  channel,  to  all  the  Powers  that  were 
represented  at  the  International  Peace  Conference  at  The  Hague. 

Article  59 

Non-signatory  Powers  which  have  been  represented  at  the  International  Peace  Con- 
ference may  adhere  to  the  present  Convention,  For  this  purpose  they  must  make  known 
their  adhesion  to  the  contracting  Powers  by  a  written  notification  addressed  to  the  Nether- 
land  Government,  and  communicated  by  it  to  all  the  other  contracting  Powers. 

Article  60 

The  conditions  on  which  the  Powers  which  have  not  been  represented  at  the  Interna- 
tional Peace  Conference  may  adhere  to  the  present  Convention  shall  form  the  subject  of 

a  subsequent  agreement  between  the  contracting  Powers. 
[160]   In  the  event  of  one  of  the  high  contracting  Parties  denouncing  the  present  Conven- 
tion, this  denunciation  would  not  take  effect  until  a  year  after  its  notification  made 
in  writing  to  the  Netherland  Government,  and  by  it  communicated  at  once  to  all  the  other 
contracting  Powers. 

This  denunciation  shall  have  effect  only  in  regard  to  the  notifying  Power. 

In  faith  of  which  the  respective  plenipotentiaries  have  signed  the  present  Convention 
and  have  affixed  their  seals  thereto. 

Done  at  The  Hague,  the ,  one  thousand  eight  hundred  and  ninety-nine, 

in  a  single  original,  which  shall  remain  deposited  in  the  archives  of  the  Netherland  Govern- 
ment^ and  copies  of  which^  duly  certified,  shall  be  sent  through  the  diplomatic  channel  to 
the  contracting  Powers. 

On  an  observation  by  Chevalier  Descamps,  it  is  decided  to  separate  the  final 
provisions  from  those  which  precede  them  and  w^hich  deal  with  arbitral  pro- 
cedure. Articles  58  and  the  following  will  appear  under  the  heading  of  "  General 
provisions." 

It  is  likewise  understood  that  Mr.  Descamps  will  be  authorized  to  complete 
in  this  sense  the  report  that  he  has  presented  to  the  Conference  and  to  introduce 
in  it  the  new  texts  which  have  just  been  adopted. 

Jonkheer  van  Karnebeek  presents  his  report  in  the  name  of  the  Commission 
on  Correspondence  which  was  organized  under  his  presidency,  with  Messrs. 
Merey  von  Kapos-Mere,  his  Excellency  Mr.  Eyschen,  Easily  and  Dr.  Roth. 

The  Commission  has  examined  the  different  addresses,  letters,  and  telegrams 
addressed  to  the  Conference.  The  majority  of  them  contained  wishes  for  the 
success  of  the  work  of  the  Conference.  They  have  been  answered  in  appropriate 
terms  by  the  chairman  and  by  the  Bureau. 

The  Commission  has  likewise  found  communicated  to  it  a  considerable 
number  of  resolutions  emanating  from  private  societies  in  favor  of  disarmament 
and  of  arbitration,  as  well  as  a  quantity  of  pamphlets,  etc.,  of  which,  to  a  great 
extent,  the  delegates  have  individually  received  copies.     To  these  there  was  no 


NINTH  MEETING,  JULY  28,  1899:  ANNEX  219 

answer.  Finally,  it  has  had  to  pass  by  communications  of  various  natures  which 
concern  matters  foreign  to  the  Conference  or  outside  of  its  jurisdiction. 

The  report  of  Mr.  van  Karnebeek  is  approved. 

The  Conference  is  called  for  a  meeting  of  signature  July  29,  at  10  o'clock, 
and  for  a  closing  meeting  the  same  day  at  3  o'clock. 

The  meeting  adjourns. 


[161]  Annex  to  Minutes  of  the  Ninth  Meeting,  July  28 

NOMENCLATURE  OF  THE  SOVEREIGNS  AND  RULERS  OF  STATES 
REPRESENTED  AT  THE  PEACE  CONFERENCE 

His  Majesty  the  Emperor  of  Germany,  King  of  Prussia;  His  Majesty  the 
Emperor  of  Austria,  King  of  Bohemia,  etc.,  and  Apostolic  King  of  Hungary; 
His  Majesty  the  King  of  the  Belgians;  His  Majesty  the  Emperor  of  China; 
His  Majesty  the  King  of  Denmark;  His  Majesty  the  King  of  Spain  and  in  His 
Name  Her  Majesty  the  Queen  Regent  of  the  Kingdom;  the  President  of  the 
United  States  of  America;  the  President  of  the  United  States  of  Mexico;  the 
President  of  the  French  Republic ;  Her  Majesty  the  Queen  of  the  United  King- 
dom of  Great  Britain  and  Ireland,  Empress  of  India ;  His  Majesty  the  King  of  the 
Hellenes;  His  Majesty  the  King  of  Italy;  His  Majesty  the  Emperor  of  Japan; 
His  Royal  Highness  the  Grand  Duke  of  Luxemburg,  Duke  of  Nassau ;  His  High- 
ness the  Prince  of  Montenegro ;  Her  Majesty  the  Queen  of  the  Netherlands ;  His 
Imperial  Majesty  the  Shah  of  Persia;  His  Majesty  the  King  of  Portugal  and 
of  the  Algarves,  etc.;  His  Majesty  the  King  of  Roumania;  His  Majesty  the 
Emperor  of  All  the  Russias;  His  Majesty  the  King  of  Siam;  His  Majesty  the 
King  of  Sweden  and  Norway;  the  Swiss  Federal  Council;  His  Majesty  the 
Emperor  of  the  Ottomans,  and  His  Royal  Highness  the  Prince  of  Bulgaria. 


(262] 


CLOSING  MEETING 

JULY  29,  1899 


His  Excellency  Mr.  Staal  presiding. 

The   meeting   opens   at    10   o'clock. 

The  President  says  that  the  minutes  of  the  last  meeting  will  be  distributed 
in  proof-sheets  and  he  begs  the  delegates  kindly  to  return  their  copies  to  the 
secretariat  with  the  necessary  corrections. 

The  President  informs  the  Conference  that  the  Final  Act,  the  Conventions 
and  Declarations  of  which  it  has  adopted  the  text  are  ready  to  receive  the  signa- 
tures of  the  plenipotentiaries,  and  he  suspends  the  meeting  to  permit  the  latter  to 
sign  the  documents. 

The  meeting  resumes  its  session  at  3  o'clock. 

The  Honorary  President,  his  Excellency  Mr.  de  Beaufort,  Minister  for 
Foreign  Affairs,  and  his  Excellency  Mr.  Pierson,  Minister  of  Finance,  are  present 
at  the  meeting. 

Jonkheer  van  Karnebeek  reads  the  table  of  signatures  that  have  been  affixed 
to  the  Final  Act,  the  Conventions  and  the  Declarations. 

TABLE  OF  SIGNATURES 


I. — Final  Act 

Signed  by  all  the  Powers  represented  at  the  Conference. 

Germany                                Great  Britain 

Roumania 

Austria-Hungary                   Greece 

Russia 

Belgium                                  Italy 

Serbia 

China                                      Japan 

Siam 

Denmark                                Luxemburg 

Sweden  and 

Norway 

Spain                                      Montenegro 

Switzerland 

United  States  of  America    Netherlands 

Turkey 

United  Mexican  States         Persia 

Bulgaria 

France                                   Portugal 

II. — Conventions 

A. — Convention   for   the   pacific   settlement   of 

international 

disputes 

Belgium                                Greece 

Roumania 

Denmark                                Montenegro 

Russia 

Spain                                      Netherlands 

Siam 

United  States  of  America   Persia 

Sweden  and 

Norway 

United  Mexican  States        Portugal 

Bulgaria 

^^a"<=e                                             16  Powers 

220 

CLOSING  MEETING,  JULY  29,  1899 
B. — Convention  on  the  laws  and  customs  of  war  on  land 


221 


Belgium 

Denmark 

Spain 

United  Mexican  States 

France 


Greece 

Montenegro 

Netherlands 

Persia 

Portugal 

15  Powers 


Roumania 

Russia 

Siam 

Sweden  and  Norway 

Bulgaria 


[163]   C. — Convention  for  the  adaptation  to  maritime  warfare  of  the  principles 

of  the  Geneva  Convention 


Belgium 

Denmark 

Spain 

United  Mexican  States 

France 


Greece 

Montenegro 

Netherlands 

Persia 

Portugal 

15  Powers 


Roumania 

Russia 

Siam 

Sweden  and  Norway 

Bulgaria 


III . — Declarations 
A. — Concerning  the  prohibition  of  the  discharge  of  projectiles  from  balloons,  etc. 


Belgium  Greece 

Denmark  Montenegro 

Spain  Netherlands 

United  States  of  America  Persia 
United  Mexican  States        Portugal 
France  Roumania 

17  Powers 


Russia 

Siam 

Sweden  and  Norway 

Turkey 

Bulgaria 


3. — Concerning  the  prohibition  of  employing  asphyxiating  gas  projectiles 


Belgium 

Denmark 

Spain 

United  Mexican  States 

France 

Greece* 


Montenegro 

Netherlands 

Persia 

Portugal 

Roumania 


Russia 

Siam 

Sweden  and  Norway 

Turkey 

Bulgaria 


16  Powers 


C. — Concerning  the  prohibition  of  bullets  which  expand,  etc. 


Belgium 

Denmark 

Spain 

United  Mexican  States 

France 


Greece 

Montenegro 
Netherlands 
Persia 
Roumania 

15  Powers 


Russia 

Siam 

Sweden  and  Norway 

Turkey 

Bulgaria 


222  PLENARY  CONFERENCE 

The  President  states  that  the  Government  of  the  Netherlands  has  asked 
him  to  bring  to  the  knowledge  of  the  Conference  a  letter  addressed  by  Her 
Majesty  the  Queen  of  the  Netherlands  to  His  Holiness  the  Pope,  advising  him 
of  the  meeting  of  the  Peace  Conference  at  The  Hague,  as  also  the  answer  of 
His  Holiness  to  that  communication. 

Letter  of  Her  Majesty  the  Queen  of  the  Netherlands 

Most  August  Pontiff  : 

Your  Holiness,  whose  eloquent  voice  has  always  been  raised  with  such 
authority  in  favor  of  peace,  having  quite  recently,  in  your  allocution  of  the  11th 
of  April,  last,  expressed  those  generous  sentiments,  more  especially  in  regard 
to  the  relations  among  peoples,  I  considered  it  my  duty  to  inform  you  that, 
at  the  request  and  upon  the  initiative  of  His  Majesty  the  Emperor  of  All  the 
Russias,  I  have  called  together,  for  the  eighteenth  of  this  month,  a  Conference  at 
The  Hague,  which  shall  be  charged  with  seeking  the  proper  means  of  diminishing 
the  present  crushing  military  charges  and  to  prevent  war,  if  possible,  or  at  least 
to  mitigate  its  effects. 

I  am  sure  that  your  Holiness  will  look  with  sympathy  upon  the  meeting  of 

this  Conference,  and  I  shall  be  very  happy  if,  in  expressing  to  me  the 

[164]   assurance  of   that  distinguished  sympathy,   you   would  kindly  give  your 

valuable  moral  support  to  the  great  work  which  shall  be  wrought  out  at 

my  capital,  according  to  the  noble  plans  of  the  magnanimous  Emperor  of  All 

the  Russias. 

I  seize  with  alacrity  upon  the  present  occasion,  Most  August  Pontiff,  to 
renew  to  your  Holiness  the  assurance  of  my  high  esteem  and  of  my  personal 
devotion. 

(Signed)     Wilhelmina. 

Hausbaden,  May  7,  1899. 


Reply  of  His  Holiness 

Your  Majesty: 

We  cannot  but  find  agreeable  the  letter  by  which  Your  Majesty,  in  announc- 
ing to  us  the  meeting  of  the  Conference  for  Peace  in  your  capital,  did  us  the 
courtesy  to  request  our  moral  support  for  that  assembly. 

We  hasten  to  express  our  keen  sympathy  for  the  august  initiator  of  the 
Conference,  and  for  Your  Majesty,  who  extended  to  it  such  spontaneous  and 
noble  hospitality,  and  for  the  eminently  moral  and  beneficent  object  toward  which 
the  labors  already  begun  are  tending. 

We  consider  that  it  comes  especially  within  our  province  not  only  to  lend 
our  moral  support  to  such  enterprises,  but  to  cooperate  actively  in  them,  for  the 
object  in  question  is  supremely  noble  in  its  nature  and  intimately  bound  up  with 
our  august  ministry,  which,  through  the  divine  founder  of  the  Church,  and  in 
virtue  of  traditions  of  many  secular  instances,  has  been  invested  with  the  highest 
possible  mission,  that  of  being  a  mediator  of  peace.  In  fact,  the  authority  of  the 
supreme  pontiff  goes  beyond  the  boundaries  of  nations;  it  embraces  all  peoples, 
to  the  end  of  federating  them  in  the  true  peace  of  the  gospel.  His  action  to  pro- 
mote the  general  good  of  humanity  rises  above  the  special  interest  which  the 


CLOSING  MEETING,  JULY  29,  1899  223) 

chiefs  of  the  various  States  have  in  view,  and,  better  than  any  one  else,  his 
authority  knows  how  to  incline  toward  concord  peoples  of  diverse  nature  and 
character. 

History  itself  bears  witness  to  all  that  has  been  done,  by  the  influence  of  our 
predecessors,  to  soften  the  inexorable  laws  of  war,  to  arrest  bloody  conflicts  when 
controversies  have  arisen  between  princes,  to  terminate  peacefully  even  the  most 
acute  diflferences  between  nations,  to  vindicate  courageously  the  rights  of  the  weak 
against  the  pretensions  of  the  strong.  Even  unto  us,  notwithstanding  the  abnormal 
condition  to  which  we  are  at  present  reduced,  it  has  been  given  to  put  an  end  to 
grave  differences  between  great  nations  such  as  Germany  and  Spain,  and  this  very 
day  we  hope  to  be  able  soon  to  establish  concord  between  two  nations  of  South 
America  which  have  submitted  their  controversy  to  our  arbitration. 

In  spite  of  obstacles  which  may  arise,  we  shall  continue,  since  it  rests  with 
us  to  fulfil  that  traditional  mission,  without  seeking  any  other  object  than  the 
public  weal,  without  envying  any  glory  but  that  of  serving  the  sacred  cause  of 
Christian  civilization. 

We  beg  Your  Majesty  to  accept  the  expression  of  our  great  esteem  and  our 
best  wishes  for  your  prosperity  and  that  of  your  kingdom. 

From  the  Vatican,  May  29,  1899. 

(Signed)  Leo  P.P.  XIII. 

The  President  states  that  the  text  of  these  two  letters  shall  be  inserted  in 
the  report  of  the  meeting,  and  then  makes  the  following  address  : 

Gentlemen  :  We  have  reached  the  end  of  our  labors.  Before  we  part  and 
shake  hands  with  each  other  for  the  last  time  in  this  beautiful  Palace  in  the 
Wood,  I  come  to  ask  you  to  join  with  me  in  repeating  the  tribute  of  our  gratitude 
to  the  gracious  sovereign  of  the  Netherlands  for  the  hospitality  so  lavishly  show- 
ered upon  us.  The  wishes  which  Her  Majesty  recently  expressed  in  a  voice  at 
once  charming  and  determined  have  been  of  good  omen  for  the  progress  of  our 
deliberations.  May  God  crown  with  His  blessings  the  reign  of  Her  Majesty  the. 
Queen  of  the  Netherlands,  for  the  good  of  the  noble  country  under  her  rule. 

We  beg  Mr.  de  Beaufort,  in  his  capacity  of  honorary  president  of  the  Con- 
ference, kindly  to  lay  the  homage  of  our  good  wishes  at  the  feet  of  Her  Majesty. 
We  likewise  request  his  Excellency  and  the  Netherland  Government  to  accept  the- 
expression  of  our  gratitude  for  the  kindly  assistance  they  have  given  us,  which 

has  so  greatly  facilitated  our  task. 
[165]  With  all  my  heart  I  assume  the  role  of  your  spokesman  in  warmly  thanking 
the  eminent  statesmen  and  jurists  who  have  presided  over  the  work  of  our 
Commissions,  of  our  subcommissions,  and  of  our  committees.     They  have  dis- 
played the  rarest  qualities,  and  we  are  happy  to  be  able  to  congratulate  them  here. 

Our  reporters  also  deserve  your  gratitude.  In  their  reports,  which  are  indeed' 
masterpieces,  they  have  given  the  authorized  commentary  on  the  texts  adopted. 

Our  secretariat  has  performed  an  arduous  task  with  a  zeal  which  is  worthy 
of  every  praise.  The  accurate  and  complete  proces-verhaux  of  our  long  and  fre- 
quent sessions  bear  witness  to  this  fact. 

Finally,  I  have  to  thank  you  myself,  gentlemen,  for  all  the  indulgent  kind- 
nesses which  you  have  shown  to  your  president.  It  is  indeed  one  of  the  greatest 
honors  of  my  long  life,  which  has  been  devoted  entirely  to  the  service  of  my  sover- 
eigns and  my  country,  to  have  been  called  by  you  to  the  presidency  of  our  higjh 


224  PLENARY  CONFERENCE 

assembly.  In  the  course  of  the  years  during  which  I  have  been  an  attentive  wit- 
ness of  events  which  will  form  the  history  of  our  century,  in  some  of  which  I  have 
taken  part  as  a  modest  workman,  I  have  seen  a  gradually  increasing  influence  of 
moral  ideas  in  political  relations.  This  influence  has  to-day  reached  a  memorable 
stage. 

His  Majesty  the  Emperor  of  Russia,  inspired  by  family  traditions,  as  Mr. 
Beernaert  has  happily  reminded  us,  and  animated  by  constant  solicitude  for  the 
welfare  of  nations,  has  in  a  measure  opened  the  way  for  the  realization  of  these 
conceptions.  You,  gentlemen,  who  are  younger  than  your  president,  will  no  doubt 
make  further  progress  along  the  road  upon  which  we  have  set  out. 

After  so  long  and  laborious  a  session,  while  you  have  before  your  eyes  the 
result  of  your  labors,  I  shall  refrain  from  burdening  you  with  an  historical  account 
of  what  you  have  accomplished  at  the  cost  of  so  much  effort.  I  shall  confine  my- 
self to  a  few  general  observations. 

In  response  to  the  call  of  the  Emperor  my  august  master,  the  Conference 
accepted  the  program  outlined  in  the  circulars  of  Count  Mouravieff,  and  exam- 
ined it  attentively  and  at  length. 

If  the  First  Commission,  which  had  taken  charge  of  military  questions,  the 
limitation  of  armaments  and  of  budgets,  did  not  arrive  at  important  material 
results,  it  is  because  the  Commission  met  with  technical  difficulties  and  a  series 
of  allied  considerations  which  it  did  not  deem  itself  competent  to  examine.  But 
the  Conference  has  requested  the  various  Governments  to  resume  the  study  of 
these  questions.  The  Conference  unanimously  supported  the  resolution  proposed 
by  the  first  delegate  of  France,  to  wit :  "  That  the  limitation  of  military  charges, 
which  at  present  weigh  down  the  world,  is  greatly  to  be  desired  for  the  increase  of 
the  material  and  moral  welfare  of  humanity." 

The  Conference  likewise  accepted  all  the  humanitarian  proposals  referred  to 
the  Second  Commission  for  examination. 

In  this  class  of  questions  the  Conference  was  able  to  meet  the  long-expressed 
desire  that  the  application  of  principles  similar  to  those  embodied  in  the  Geneva 
Convention  be  extended  to  naval  warfare. 

Resuming  a  work  started  at  Brussels  twenty-five  years  ago  under  the  auspices 
of  Emperor  Alexander  II,  the  Conference  succeeded  in  giving  a  more  definite 
form  to  the  laws  and  customs  of  war  on  land. 

Such,  gentlemen,  are  the  positive  results  achieved  by  conscientious  labor. 

But  the  work  which  opens  a  new  era,  so  to  speak,  in  the  domain  of  the  law 
of  nations,  is  the  Convention  for  the  peaceful  settlement  of  international  disputes. 
It  bears  as  a  heading  the  inscription :  "  The  Maintenance  of  General  Peace." 

A  few  years  ago,  in  closing  the  Bering  Sea  arbitration,  an  eminent  French 
diplomat  expressed  himself  as  follows:  "We  have  endeavored  to  preserve  intact 
the  fundamental  principles  of  that  august  law  of  nations  which  spreads  like  the 
vault  of  heaven  over  all  nations  and  borrows  the  laws  of  nature  herself,  to  protect 
the  peoples  of  the  world  one  from  the  other  by  inculcating  upon  them  the  essentials 
of  mutual  good-will." 

The  Peace  Conference,  with  the  authority  possessed  by  an  assembly  com- 
posed of  civilized  States,  has  endeavored  also  to  safeguard,  in  matters  of 
the  utmost  importance,  the  fundamental  principles  of  international  law.  It  has 
undertaken  to  give  them  precision,  to  develop  them,  and  to  apply  them  more  com- 
pletely.    It  has  created  upon  several  points  a  new  law  to  meet  new  necessities,  the 


CLOSING  MEETING,  JULY  29,  1899  225 

progress  of  international  life,  the  exigencies  of  the  public  conscience,  and  the 
highest  aspirations  of  humanity.  Especially  has  it  accomplished  a  work  which 
will  doubtless  be  called  hereafter  "  The  First  International  Code  of  Peace,"  to 
which  we  have  given  the  more  modest  name  of  "  Convention  for  the  pacific  settle- 
ment of  international  disputes." 
[166]  In  inaugurating  the  sessions  of  the  Conference,  I  pointed  out  as  one  of 
the  principal  elements  of  our  combined  endeavors — "  the  very  essence  of 
our  task  " — the  realization  of  the  progress  so  impatiently  awaited  in  the  matter 
of  mediation  and  arbitration,  I  was  not  mistaken  in  believing  that  our  labors 
in  this  direction  would  be  of  exceptional  importance. 

This  work  is  to-day  an  accomplished  fact.  It  bears  witness  to  the  great  solici- 
tude of  the  Governments  for  all  that  concerns  the  peaceful  development  of  inter- 
national relations  and  the  well-being  of  nations. 

No  doubt  this  work  is  not  perfect,  but  it  is  sincere,  practical,  and  wise.  It 
endeavors  to  conciliate,  in  safeguarding  them,  the  two  principles  which  are  the 
foundation  of  the  law  of  nations — the  principle  of  the  sovereignty  of  States  and 
the  principle  of  a  just  international  solidarity.  It  gives  precedence  to  that  which 
unites  over  that  which  divides.  It  affirms  that  the  dominant  factor  in  the  era 
upon  which  we  are  entering  should  be  works  which  spring  from  the  need  of 
concord  and  which  are  made  fruitful  by  the  collaboration  of  States  seeking  the 
realization  of  their  legitimate  interests  in  a  durable  peace  governed  by  justice. 

The  task  accomplished  by  the  Hague  Conference  in  this  direction  is  indeed 
meritorious  and  noble.  It  is  in  keeping  with  the  magnanimous  sentiments  of  the 
august  initiator  of  the  Conference.  It  will  have  the  support  of  public  opinion 
everywhere,  and  will,  I  hope,  receive  the  commendation  of  history. 

I  shall  not,  gentlemen,  enter  into  the  details  of  the  Act  which  many  of  us  have 
just  signed.  They  are  set  forth  and  analyzed  in  the  incomparable  report  which 
is  in  your  hands. 

At  the  present  moment  it  is  perhaps  premature  to  judge  as  a  whole  the  work 
which  has  barely  ended.  We  are  still  too  near  the  cradle :  we  lack  the  perspective 
of  distance.  What  is  certain  is  that  this  work,  undertaken  upon  the  initiative  of 
the  Emperor  my  august  master  and  under  the  auspices  of  the  Queen  of  the 
Netherlands,  will  develop  in  the  future.  As  the  president  of  our  Third  Com- 
mission said  on  a  memorable  occasion,  "  The  further  we  advance  along  the  high- 
way of  time,  the  more  clearly  will  the  importance  of  this  work  appear." 

Well,  gentlemen,  the  first  step  has  been  taken.  Let  us  unite  our  good-will 
and  profit  by  experience. 

The  good  seed  is  sown.     Let  the  harvest  come. 

As  for  me,  who  have  reached  the  end  of  my  career  and  the  decline  of  life, 
I  consider  it  a  supreme  consolation  to  see  new  prospects  opening  up  for  the  good 
of  humanity  and  to  be  able  to  peer  into  the  brightness  of  the  future.  (Prolonged 
applause.) 

His  Excellency  Count  Miinster  speaks  as  follows: 

Gentlemen  :  You  will  allow  me,  as  the  senior  member  of  this  assembly, 
to  answer  the  eloquent  words  which  we  have  just  heard,  and  you  will  join  me  in 
expressing  our  thanks  to  Mr.  Staal  and  Mr.  van  Karnebeek,  the  president  and 
vice  president  of  the  Conference. 

Mr.  Staal  has  greatly  contributed  to  the  success  of  our  work.  By  his  great 
courtesy  to  all  of  us,  he  was  able  to  maintain  good  relations  among  all  the  dele- 


226  PLENARY  CONFERENCE 

gates.    It  is  very  rare  that  an  assembly  which  has  lasted  two  months  and  a  half 
can  show  such  perfect  harmony  as  that  which  has  always  reigned  in  this  hall. 

Mr.  VAN  Karnebeek  has  been  the  prime  mover  of  the  Conference.  He 
has  worked  more  than  any  of  us,  and  we  owe  him  much.  We  have  to  thank 
him  also  for  the  great  hospitality  which  we  have  found  here,  from  the  throne 
-down  to  the  most  humble  citizen. 

Mr.  VAN  Karnebeek  has  found  inspiration  in  the  example  of  his  august 
•sovereign,  who  has  honored  us  with  a  welcome  which  we  shall  never  forget. 

If  the  Conference  has  not  realized  all  of  its  wishes — and  its  desires  and 
illusions  ran  high — it  will  at  least  have  a  great  influence  upon  the  future,  and  the 
^eeds  which  it  has  sown  are  sure  to  germinate.  Its  particular  result  will  then  be 
the  influence  which  the  meeting  of  so  many  eminent  men  cannot  fail  to  have 
upon  the  mutual  understanding  of  all  nations.  This  Conference  will  be  one  of  our 
most  beautiful  memories,  and  in  this  recollection  two  names  will  always  shine, 
those  of  Mr.  Staal  and  Mr.  van  Karnebeek.  I  beg  you  to  rise  in  their  honor. 
{Loud  applause.) 

The  President  answers  that  he  is  deeply  touched  by  the  eloquent  words  which 
have  just  been  spoken,  and  that  he  thanks  Count  Munster  from  the  bottom  of 
his  heart,  as  well  as  all  those  whose  sentiments  he  has  expressed.  In  the  many 
memories  which  he  will  take  away  from  the  Conference,  that  of  the  good  relations 
which  he  has  sustained  with  all  his  colleagues  will  never  leave  his  recollection. 
{Applause.) 

Jonkheer  van  Karnebeek  says  that  he  is  equally  touched  by  the  words  of 
Count  Munster.  He  hesitates  nevertheless  to  apply  these  words  of  praise  to 
himself  personally.  If  it  is  thought  that  he  was  able  to  do  anything  for 
.[167]  the  success  of  the  common  labors,  and  if  he  has  been  in  any  way  the  per- 
sonification of  the  spirit  and  the  work  of  the  Conference,  Mr.  van  Karne- 
beek declares  that  he  has  but  reflected  the  spirit  which  filled  all  the  dele- 
gates, and  of  what  they  themselves  have  accomplished.     (Applause.) 

Baron  d'Estournelles  expresses  himself  as  follows: 

With  the  permission  of  our  honored  president  I  would  like  to  submit  to  the 
Conference  a  personal  wish  before  we  separate. 

Our  work  may  be  discussed  and  judged  too  modestly,  but,  as  Count  Munster 
has  just  said,  it  will  never  be  doubted  that  we  have  worked  conscientiously  for 
two  months  and  a  half.  We  came  to  The  Hague  from  all  parts  of  the  globe, 
without  knowing  one  another,  with  more  of  prejudice  and  of  uncertainty  than  of 
hope ;  to-day  many  prejudices  have  disappeared ;  and  confidence  and  sympathy 
have  arisen  among  us.  It  is  owing  to  this  concord,  born  of  the  devotion  of  all  of 
us  to  the  common  work  we  have  done,  that  we  have  been  enabled  to  reach  the  first 
stage  of  progress;  little  by  little  it  will  be  recognized  that  the  results  obtained  can 
not  be  neglected,  but  that  they  consitute  a  fruitful  germ.  This  germ,  however, 
in  order  that  it  may  develop,  must  be  the  object  of  constant  solicitude,  and  this  is 
the  reason  why  we  should  all  wish  and  hope  that  our  Conference  is  not  separating 
forever. 

It  should  be  the  beginning;  it  ought  not  to  be  the  end.  Let  us  unite  in  the 
hope,  gentlemen,  that  our  countries,  in  calling  other  conferences  such  as  this, 
may  continue  to  assist  in  advancing  the  cause  of  civilization  and  of  peace. 
'J{Applause.) 

His  Excellency  Mr.  de  Beaufort  makes  the  following  address: 
Before  to-day's  session  closes  I  desire  to  say  a  few  words. 


CLOSING  MEETING,  JULY  29,  1899  227 

It  has  been  a  source  of  happiness  to  the  Government  of  the  Netherlands  to 
see  you  here.  We  have  followed  your  deliberations  with  the  greatest  interest, 
and  rejoice  that  your  labors  have  borne  fruit. 

If  the  Peace  Conference  has  not  been  able  to  realize  the  dreams  of  Utopians, 
the  fact  should  not  be  lost  sight  of  that  in  this  respect  it  is  like  all  gatherings 
of  serious  and  intelligent  men  who  seek  a  practical  goal.  If,  on  the  other  hand,  the 
Conference  has  disproved  the  gloomy  predictions  of  pessimists,  who  beheld  in  it 
merely  a  generous  effort  about  to  be  lost  in  the  utterance  of  a  few  wishes,  it  has 
proved  by  this  very  fact  the  clear-sightedness  of  the  august  monarch  who 
chose  a  propitious  time  for  its  meeting. 

It  is  not  my  desire  to  emphasize  at  the  present  moment  the  great  importance 
of  the  results  accomplished.  It  is  true  that  it  has  not  been  possible  to  express 
unanimous  agreement  upon  the  principle  of  disarmament  in  a  practical  formula 
applicable  to  the  internal  legislation  of  the  different  countries  and  in  harmony 
with  their  divergent  needs.  Let  us  remember  in  this  connection  the  saying  of  an 
eminent  historian,  the  Duke  of  Broglie,  who  a  few  weeks  ago  remarked  in  speak- 
ing of  the  Conference :  **  We  are  living  at  a  time  when  as  much  account  should 
be  taken  of  the  moral  effect  of  an  important  measure  as  of  its  material  and 
immediate  results — indeed  more  account." 

Without  doubt  the  moral  effect  of  your  deliberations,  already  perceptible, 
will  make  itself  felt  more  and  more  and  will  not  fail  to  show  itself  strikingly  in 
public  opinion.  It  will  also  be  of  the  utmost  assistance  to  the  Governments  in 
their  efforts  to  solve  the  problem  of  the  limitation  of  armaments,  a  problem  which 
will  continue  to  be,  and  rightly,  the  serious  and  legitimate  concern  of  the  states- 
men of  all  countries. 

Permit  me,  before  concluding,  to  express  the  hope  that  His  Majesty  the 
Emperor  of  Russia  may  find,  in  renewed  energy  to  continue  the  great  work  he 
has  undertaken,  the  most  effectual  consolation  for  the  great  and  cruel  sorrow 
through  which  he  has  passed.  For  ourselves,  the  memory  of  your  sojourn  here 
will  remain  for  ever  a  bright  spot  in  the  annals  of  our  country,  because  it  is 
our  firm  conviction  that  this  sojourn  has  opened  a  new  era  in  the  history  of  inter- 
national relations  between  civilized  peoples.     (Unanimous  applause.) 

The  President  states  that  the  sessions  of  the  Peace  Conference  are  closed, 
and  that  the  meeting  is  adjourned. 


FINAL  ACT  OF   THE  INTERNATIONAL 
PEACE  CONFERENCE 


The  International  Peace  Conference,  convoked  in  the  best  interests  of 
humanity  by  His  Majesty  the  Emperor  of  All  the  Russias,  assembled,  on  the 
invitation  of  the  Government  of  Her  Majesty  the  Queen  of  the  Netherlands,  in 
the  Royal  House  in  the  Wood  at  The  Hague,  on  May  18,  1899. 

The  Powers  enumerated  in  the  following  list  took  part  in  the  Conference,  to 
which  they  appointed  the  delegates  named  below: 

Germany : 

His  Excellency  Count  Munster,  German  Ambassador  at  Paris,  delegate 
plenipotentiary. 

The  Baron  von  Stengel,  professor  at  the  University  of  Munich,  second 
delegate. 

Dr.  ZoRN,  Judicial  Privy  Councilor,  professor  at  the  University  of  Konigs- 
berg,  scientific  delegate. 

Colonel  Gross  von  Schwarzhoff,  Commandant  of  the  5th  Regiment  of 
Infantry,  No,  94,  technical  delegate. 

Captain  Siegel,  Naval  Attache  to  the  Imperial  Embassy  at  Paris,  technical 
delegate. 

Austria-Hungary : 

His  Excellency  Count  R.  von  Welsersheimb,  Ambassador  Extraordinary 
and  Plenipotentiary,  first  delegate,  plenipotentiary. 

Mr.  Alexander  Okolicsanyi  von  Okolicsna,  Envoy  Extraordinary  and 
Minister  Plenipotentiary  at  The  Hague,  second  delegate,  plenipotentiary. 

Mr.  Cajetan  Merey  von  Kapos-Mere,  Counselor  of  Embassy  and  Chief 
of  Cabinet  of  the  Minister  for  Foreign  Aflfairs,  assistant  delegate. 

Mr.  Heinrich  Lammasch,  professor  at  the  University  of  Vienna,  assistant 
delegate. 

Mr.  Victor  von  Khuepach  zu  Reid,  Zimmerlehen  und  Haslburg,  Lieu- 
tenant-Colonel on  the  General  Stafif,  assistant  delegate. 

Count  Stanislaus  Soltyk,  Captain  of  Corvette,  assistant  delegate. 

Belgium : 

His  Excellency  Mr.  Auguste  Beernaert,  Minister  of  State,  President  of 
the  Chamber  of  Representatives,  delegate  plenipotentiary. 

The  Count  de  Grelle  Rogier,  Envoy  Extraordinary  and  Minister  Plenipo- 
tentiary at  The  Hague,  delegate  plenipotentiary. 

The  Chevalier  Descamps,  Senator,  delegate  plenipotentiary. 

228 


FINAL  ACT  OF  THE  CONFERENCE  229 

China : 

Mr.  Yang  Yu,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at  St. 
Petersburg,   tirst   delegate  plenipotentiary. 
Mr.  Lou  TsENG-TSiANG^  second  delegate. 
Mr.  Hoo  Wei-teh,  second  delegate. 
Mr.  Ho  Yen-cheng,  Counselor  of  Legation,  assistant  delegate. 

Denmark : 

[2]   Chamberlain  Fr.  E.  Bille,  Envoy  Extraordinary  and  Minister  Plenipoten- 
tiary at   London,   first  delegate  plenipotentiary. 

Mr.  J.  G.  F.  VON  ScHNACK,  Colonel  of  Artillery,  ex-Minister  for  War, 
second  delegate  plenipotentiary.  -    _ 

Spain : 

His  Excellency  Duque  de  Tetuan,  ex-Minister  for  Foreign  Affairs,  first 
delegate  plenipotentiary. 

Mr.  W.  Ramirez  de  Villa  Urrutia,  Envoy  Extraordinary  and  Minister 
Plenipotentiary  at  Brussels,  delegate  plenipotentiary. 

Mr.  Arturo  de  Baguer,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  The  Hague,  delegate  plenipotentiary. 

The  Count  de  Serrallo,  Colonel,  Military  Attache  to  the  Spanish  Legation 
at  Brussels,  assistant  delegate. 

The  United  States  of  America : 

His  Excellency  Mr.  Andrew  D.  White,  United  States  Ambassador  at 
Berlin,  delegate  plenipotentiary. 

The  Honorable  Seth  Low,  president  of  the  Columbia  University  at  New 
York,  delegate  plenipotentiary. 

Mr.  Stanford  Newel,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  The  Hague,  delegate  plenipotentiary. 

Captain  Alfred  T.  Mahan,  United  States  Navy,  delegate  plenipotentiary. 

Mr.  William  Crozier,  Captain  of  Artillery,  delegate  plenipotentiary. 

Mr.  Frederick  W.  Holls,  advocate  at  New  York,  delegate  and  secretary  to 
the  delegation. 

The  United  States  of  Mexico: 

Mr.  de  Mier,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at  Paris, 
delegate  plenipotentiary. 

Mr.  Zenil,  Minister  Resident  at  Brussels,  delegate  plenipotentiary. 

France : 

Mr.  Leon  Bourgeois,  ex-President  of  Council,  ex-Minister  for  Foreign 
Affairs,  member  of  the  Chamber  of  Deputies,  first  delegate,  plenipotentiary. 

Mr.  Georges  Bihourd,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  The  Hague,  second  delegate,  plenipotentiary. 

The  Baron  d'Estournelles  de  Constant,  Minister  Plenipotentiary,  mem- 
ber of  the  Chamber  of  Deputies,  third  delegate,  plenipotentiary. 

Mr.  MouNiER,  General  of  Brigade,  technical  delegate. 


230  FINAL  ACT  OF  THE  CONFERENCE 

Mr.  Pephau,  Rear  Admiral,  technical  delegate. 

Mr.  Louis  Renault,  professor  of  the  Faculty  of  Law  at  Paris,  Legal 
Advisor  to  the  Ministry  for  Foreign  Atfairs,  technical  delegate. 

Great  Britain  and  Ireland: 

His  Excellency  the  Right  Honorable  Sir  Julian  Pauncefote,  member  of 
Her  Majesty's  Privy  Council,  Ambassador  Extraordinary  and  Plenipotentiary  of 
the  United  Kingdom  at  Washington,  first  delegate,  plenipotentiary. 

Sir  Henry  Howard,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  The  Hague,  second  delegate,  plenipotentiary. 

Sir  John  A.  Fisher,  Vice  Admiral,  technical  delegate. 

Sir  J.  C.  Ardagh,  Major  General,  technical  delegate. 

Lieutenant  Colonel  C.  A  Court,  Military  Attache  at  Brussels  and  The  Hague, 
assistant  technical  delegate. 

Greece : 

Mr.  N.  Delyanni,  ex-President  of  the  Council,  ex-Minister  for  Foreign 
Affairs,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at  Paris,  delegate 
plenipotentiary. 

Italy   : 

His  Excellency  Count  Nigra,  Italian  Ambassador  at  Vienna,  Senator  of  the 
Kingdom,  first  delegate,  plenipotentiary. 

Count  A.  Zannini,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
[3]  The  Hague,  second  delegate,  plenipotentiary. 

The  Chevalier  Guido  Pompilj,  Deputy  in  the  Italian  Parliament,  third  dele- 
gate, plenipotentiary. 

The  Chevalier  Louis  Zuccari,  Major  General,  technical  delegate. 

The  Chevalier  Auguste  Bianco,  Captain,  Naval  Attache  to  the  Royal 
Embassy  at  London,  technical  delegate. 

Japan : 

The  Baron  Hayashi,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  St.  Petersburg,  first  delegate,  plenipotentiary. 

Mr.  I.  MoTONO,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
Brussels,  second  delegate,  plenipotentiary. 

Colonel  Uehara,  technical  delegate. 

Captain  Sakamoto,  Japanese  Navy,  technical  delegate. 

Mr.  Nagao  Ariga,  professor  of  international  law  at  the  Superior  Military 
School  and  the  Naval  School  at  Tokio,  technical  delegate. 

Luxemburg : 

His  Exellency  Mr.  Eyschen,  Minister  of  State,  President  of  the  Grand 
Ducal  Government,  delegate  plenipotentiary. 

The  Count  de  Villers,  Charge  d'AflFaires  at  Berlin,  delegate  plenipotentiary. 

Montenegro : 

His  Excellency  Mr.  Staal,  Privy  Councilor,  Russian  Ambassador  at  London, 
delegate  plenipotentiary. 


FINAL  ACT  OF  THE  CONFERENCE  231 

The  Netherlands: 

Jonkheer  A.  P.  C.  van  Karnebeek,  ex-Minister  for  Foreign  Affairs,  mem- 
ber of  the  Second  Chamber  of  the  States-General,  delegate  plenipotentiary. 

General  J.  C.  C.  den  Beer  Poortugael,  ex-Minister  for  War,  member  of  the 
Council  of  State,  delegate  plenipotentiary. 

Mr.  T.  M.  C.  AssER,  member  of  the  Council  of  State,  delegate  plenipoten- 
tiary. 

Mr.  E.  N.  Rahusen,  member  of  the  First  Chamber  of  the  States-General, 
delegate  plenipotentiary. 

Captain  A.  P.  Tadema,  Chief  of  the  Staff  of  the  Netherland  Navy,  techni- 
cal delegate. 

Persia : 

Aide-de-Camp  General  Mirza  Riza  Khan,  Arfa-ud-Dovleh,  Envoy  Ex- 
traordinary and  minister  Plenipotentiary  at  St.  Petersburg  and  Stockholm,  first 
delegate,  plenipotentiary. 

Mirza  Samad  Khan,  Momtas-es-Saltaneh,  Counselor  of  Legation  at  St. 
Petersburg,  assistant  delegate. 

Portugal : 

The  Count  de  Macedo,  Peer  of  the  Kingdom,  ex-Minister  of  Marine  and 
the  Colonies,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at  Madrid, 
delegate  plenipotentiary. 

Mr.  d'Ornellas  de  Vasconcellos,  Peer  of  the  Kingdom,  Envoy  Extra- 
ordinary and  Minister  Plenipotentiary  at  St.  Petersburg,  delegate  plenipotentiary. 

The  Count  de  Selir,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  The  Hague,  delegate  plenipotentiary. 

Captain  Augusto  de  Castilho,  technical  delegate. 

Captain  on  the  General  Staff  Ayres  d'Ornellas,  technical  delegate. 

Roumania : 

Mr.  Alexandre  Beldiman,  Envoy  Extraordinary  and  Minister  Plenipoten- 
tiary at  Berlin,  first  delegate,  plenipotentiary. 

Mr.  Jean  N.  Papiniu,  Envoy  Extraordinary  and  Minister  Plenipotentiary 
at  The  Hague,  second  delegate,  plenipotentiary. 

Aide-de-Camp  Colonel  Constantin  Coanda,  Director  of  Artillery  at  the 
Ministry  for  War,  technical  delegate. 

Russia : 

His  Excellency  Mr.  Staal,  Privy  Councilor,  Russian  Ambassador  at  London, 

delegate  plenipotentiary. 
[4]  Mr.  Martens,  permanent  member  of  the  Council  of  the  Imperial  Ministry 

for  Foreign  Affairs,  Privy  Councilor,  delegate  plenipotentiary. 

Mr.  Easily,  Councilor  of  State,  Chamberlain,  Director  of  the  First  Depart- 
ment of  the  Imperial  Ministry  for  Foreign  Affairs,  delegate  plenipotentiary. 

Mr.  Raffalovich,  Councilor  of  State,  Agent  in  France  of  the  Imperial 
Ministry  for  Finance,  technical  delegate. 

Mr.  GiLiNSKY,  Colonel  on  the  General  Staff,  technical  delegate. 


232  FINAL  ACT  OF  THE  CONFERENCE 

Count  Barantzew,  Colonel  of  Horse  Artillery  of  the  Guard,  technical 
delegate. 

Captain  Scheine,  Russian  Naval  Agent  in  France,  technical  delegate. 

Mr,  OvTCHiNNiKOw,  Naval  Lieutenant,  professor  of  jurisprudence,  technical 
delegate. 

Serbia : 

Mr.  MiYATOViTCH,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
London  and  The  Hague,  delegate  plenipotentiary. 

Colonel  Maschine,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
Cettinje,  delegate  plenipotentiary. 

Dr.  VoiSLAVE  Veljkovitch,  professor  of  the  Faculty  of  Law  at  Belgrade, 
assistant  delegate. 

Siam: 

His  Excellency  Phya  Suriya  Nuvatr,  Envoy  Extraordinary  and  Minister 
Plenipotentiary  at  St.  Petersburg  and  Paris,  first  delegate,  plenipotentiary. 

His  Excellency  Phya  Visuddha  Suriya  Sakdi,  Envoy  Extraordinary  and 
Minister  Plenipotentiary  at  The  Hague  and  London,  second  delegate,  plenipo- 
tentiary. 

Mr.  Ch.  Corragioni  d'Orelli,  Counselor  of  Legation,  third  delegate. 

Mr.  Edguard  Rglin,  Siamese  Consul  General  in  Belgium,  fourth  delegate. 

Sweden  and  Norway : 

Baron  Bildt,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at  the 
Royal  Court  of  Italy,  delegate  plenipotentiary. 

Sweden : 

Colonel  P.  H.  E.  Brandstrom,  Chief  of  1st  Regiment  of  Grenadiers  of  the 
Guard,  technical  delegate. 

Captain  C.  A.  M.  de  Hjulhammar,  Swedish  Navy,  technical  delegate. 

Norway : 

Mr.  W.  KoNOW,  President  of  the  Odelsting,  technical  delegate. 
Major  General  J.  J.  Thaulow,  Surgeon  General  of  the  Army  and  Navy, 
technical  delegate. 

Switzerland : 

Dr.  Arnold  Roth,  Envoy  Extraordinary  and  Minister  Plenipotentiary  at 
Berlin,  delegate  plenipotentiary. 

Colonel  Arnold  Kunzli,  National  Councilor,  delegate. 

Mr.  Edguard  Odier,  National  Councilor,  delegate  plenipotentiary. 

Turkey : 

His  Excellency  Turkhan  Pasha,  ex-Minister  for  Foreign  Affairs,  member 
of  the  Council  of  State,  first  delegate,  plenipotentiary. 

Noury  Bey,  Secretary  General  to  the  Ministry  of  Foreign  Affairs,  delegate 
plenipotentiary. 

Abdullah  Pasha,  General  of  Division  of  the  Staff,  delegate  plenipotentiary. 

Mehemed  Pasha,  Rear  Admiral,  delegate  plenipotentiary. 


FINAL  ACT  OF  THE  CONFERENCE  233 

Bulgaria : 

Dr.  DiMiTRi  I.  Stancioff,  Diplomatic  Agent  at  St.  Petersburg,  first  delegate, 
plenipotentiary. 

Major  Christo  Hessaptchieff,  Military  Attache  at  Belgrade,  second  dele- 
gate, plenipotentiary. 
I[5]  In  a  series  of  meetings,  between  May  18  and  July  29,  1899,  in  which  the  con- 
stant desire  of  the  delegates  above-mentioned  has  been  to  realize,  in  the 
fullest  manner  possible,  the  generous  views  of  the  august  initiator  of  the  Con- 
ference and  the  intentions  of  their  Governments,  the  Conference  has  agreed,  for 
submission  for  signature  by  the  plenipotentiaries,  on  the  text  of  the  Conventions 
and  Declarations  enumerated  below  and  annexed  to  the  present  Act : 

I.  Convention  for  the  pacific  settlement  of  international  disputes. 

II.  Convention  respecting  the  laws  and  customs  of  war  on  land. 

III.  Convention  for  the  adaptation  to  maritime  warfare  of  the  principles  of 
the  Geneva  Convention  of  August  22,  1864. 

IV.  Three  Declarations : 

1.  To  prohibit  the  discharge  of  projectiles  and  explosives  from  balloons  or  by 
other  similar  new  methods. 

2.  To  prohibit  the  use  of  projectiles,  the  only  object  of  which  is  the  diffusion 
of  asphyxiating  or  deleterious  gases. 

3.  To  prohibit  the  use  of  bullets  which  expand  or  flatten  easily  in  the  human 
body,  such  as  bullets  with  a  hard  envelope  which  does  not  entirely  cover  the  core 
or  is  pierced  with  incisions. 

These  Conventions  and  Declarations  shall  form  so  many  separate  acts. 
These  acts  shall  be  dated  this  day,  and  may  be  signed  up  to  December  31,  1899,  by 
the  plenipotentiaries  of  the  Powers  represented  at  the  International  Peace  Con- 
ference at  The  Hague. 

Guided  by  the  same  sentiments,  the  Conference  has  adopted  unanimously 
the  following  resolution: 

The  Conference  is  of  opinion  that  the  restriction  of  military  charges,  which 
are  at  present  a  heavy  burden  on  the  world,  is  extremely  desirable  for  the 
increase  of  the  material  and  moral  welfare  of  mankind. 

It  has,  besides,  uttered  the  following  vocux: 

1.  The  Conference,  taking  into  consideration  the  preliminary  step  taken  by 
the  Swiss  Federal  Government  for  the  revision  of  the  Geneva  Convention, 
utters  the  v(ru  that  steps  may  be  shortly  taken  for  the  assembly  of  a  special 
Conference  having  for  its  object  the  revision  of  that  Convention. 

This  vocu  was  voted  unanimously. 

2.  The  Conference  utters  the  vocii  that  the  questions  of  the  rights  and  duties 
of  neutrals  may  be  inserted  in  the  program  of  a  Conference  in  the  near  future. 

3.  The  Conference  utters  the  vocii  that  the  questions  with  regard  to  rifles 
and  naval  guns,  as  considered  by  it,  may  be  studied  by  the  Governments  with  the 
object  of  coming  to  an  agreement  respecting  the  employment  of  new  types  and 
calibres. 

4.  The  Conference  utters  the  v(ru  that  the  Governments,  taking  into  con- 
sideration the  proposals  made  at  the  Conference,  may  examine  the  possibility  of 
an  agreement  as  to  the  limitation  of  armed  forces  by  land  and  sea,  and  of  war 
budgets. 

5.  The  Conference  utters  the  V(ru  that  the  proposal  which  contemplates  the 


234 


FINAL  ACT  OF  THE  CONFERENCE 


declaration  of  the  inviolability  of  private  property  in  naval  warfare  may  be 
referred  to  a  subsequent  Conference  for  consideration. 

6.  The  Conference  utters  the  vceu  that  the  proposal  to  settle  the  question 
of  the  bombardment  of  ports,  towns,  and  villages  by  a  naval  force  may  be  referred 
to  a  subsequent  Conference  for  consideration. 

The  last  five  vocux  were  voted  unanimously,  saving  some  abstentions. 

In  faith  of  which,  the  plenipotentiaries  have  signed  the  present  Act,  and 
have  affixed  their  seals  thereto. 

Done  at  The  Hague,  July  29,  1899,  in  a  single  original,  which  shall  be  de- 
posited in  the  Ministry  of  Foreign  Affairs,  and  copies  of  which,  duly  certified, 
shall  be  delivered  to  all  the  Powers  represented  at  the  Conference. 


7  [6]  For  Germany: 

I  For  Austria-Hungary'. 

^  For  Belgium: 


"^  For  China: 
^  For  Denmark: 

i-V  For  Spain : 

'^h  For  the  United  States  of  America: 


>  ^  For  the  United  Mexican  States: 
For  France: 

^    For  Great  Britain  and  Ireland: 

'    For  Greece: 
'     For  Italy: 

"     For  Japan: 

/"  For  Luxemburg: 

''^  For  Montenegro: 
"^  For  the  Netherlands: 


(Signed) 

MiJNSTER. 

(Signed) 

Welsersheimb. 

(Signed) 

Okolicsanyi. 

(Signed) 

A.  Beernaert. 

(Signed) 

Cte,  DE  Grelle  Rogier. 

(Signed' 

)   Chr.  Descamps. 

(Signed) 

Yang  Yu. 

(Signed) 

F.    BiLLE. 

(Signed) 

El  Duque  de  Tetuan. 

(Signed) 

W.  R.  DE  Villa  Urrutia 

(Signed) 

Arturo  de  Baguer. 

(Signed) 

Andrew  D.  White. 

(Signed) 

Seth  Low. 

(Signed) 

Stanford  Newel. 

(Signed) 

A.  T.  Mahan. 

(Signed) 

1  William  Crozier. 

(Signed) 

A.  DE  Mier. 

(Signed 

)  J.  Zenil. 

(Signed, 

1  Leon  Bourgeois. 

(Signed) 

)  G.  Bihourd. 

(Signed) 

)  d'Estournelles  de 

Constant. 

(Signed) 

)  Julian  Pauncefote. 

(Signed' 

)  Henry  Howard. 

(Signed 

)  N.  Delyanni. 

(Signed) 

)  Nigra. 

(Signed) 

)  A.  Zannini. 

(Signed) 

)    POMPILJ. 

(Signed) 

)  Hayashi. 

(Signed) 

)    MOTONO. 

(Signed) 

)  Eyschen. 

(Signed 

)  Cte.  de  Villers. 

(Signed) 

Staal. 

(Signed) 

v.  Karnebeek. 

(Signed 

)  DEN  Beer  Poortugael. 

(Signed) 

T.  M.  C.  AssER. 

(Signed) 

1  E.  N.  Rahusen. 

PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES 


235 


(  ^  For  Persia: 

-^  For  Portugal: 

''  For  Ronmania: 

'^  For  Russia: 

^  For  Serbia: 

^  •  For  Siaiu: 

^^  For  Sweden  and  Norway: 

X  ^  For  Switzerland: 

1  '  For  Turkey: 

2  For  Bulgaria: 


(Signed) 

MiRZA  RizA  Khan,  Arfa- 

UD-DOVLEH. 

(Signed) 

Conde  de  Macedo. 

(Signed) 

Agostinho   d'Ornellas   de 

Vasconcellos. 

(Signed) 

Conde  de  Selir. 

(Signed) 

A.  Beldiman. 

(Signed) 

J.  N.  Papiniu. 

(Signed) 

Staal. 

(Signed) 

►  Martens. 

(Signed' 

A.  Easily. 

(Signed) 

Chedomille  Miyatovitch. 

(Signed^ 

)  A.  Maschine. 

(Signed) 

Phya  Suriya  Nuvatr. 

(Signed' 

ViSUDDHA. 

(Signed 

)    BiLDT. 

(Signed^ 

1  Roth. 

(Signed' 

)  Odier. 

(Signed 

1    TURKHAN. 

(Signed 

)    M.    NOURY. 

(  Signed 

)  Abdullah. 

(Signed 

)  R.  Mehemed. 

(Signed 

)  D.  Stancioff. 

(Signed 

)  Major  Hessaptchieff. 

[7] 


CONVENTION  FOR  THE  PACIFIC  SETTLEMENT  OF 
INTERNATIONAL  DISPUTES 


{The  Convention  having  to  remain  open  for  signature  up  to  December 
31,  1899,  the  Contracting  Powers  and  their  plenipotentiaries  will  be  written  in  on 
that  date  in  conformity  with  the  following  order  adopted  by  the  Conference  in 
the  plenary  meeting  of  July  28,  1899)  : 

His  Majesty  the  German  Emperor,  King  of  Prussia;  His  Majesty  the 
Emperor  of  Austria,  King  of  Bohemia,  etc.,  and  Apostolic  King  of  Hungary;  His 
Majesty  the  King  of  the  Belgians ;  His  Majesty  the  Emperor  of  China ;  His  Maj- 
esty the  King  of  Denmark ;  His  Majesty  the  King  of  Spain  and  in  His  Name  Her 
Majesty  the  Queen  Regent  of  the  Kingdom ;  the  President  of  the  United  States 
of  America;  the  President  of  the  United  Mexican  States;  the  President  of  the 
French  Republic;  Her  Majesty  the  Queen  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  Empress  of  India;  His  Majesty  the  King  of  Hellenes;  His 
Majesty  the  King  of  Italy ;  His  Majesty  the  Emperor  of  Japan ;  His  Royal 
Highness  the  Grand  Duke  of  Luxemburg,  Duke  of  Nassau;  His  Highness  the 
Prince  of  Montenegro ;  Her  Majesty  the  Queen  of  the  Netherlands ;  His 
Imperial  Majesty  the  Shah  of  Persia;  His  Majesty  the  King  of  Portugal  and 
of  the  Algarves,  etc.;  His  Majesty  the  King  of  Roumania;  His  Majesty  the 
Emperor  of  All  the  Russias ;  His  Majesty  the  King  of  Serbia ;  His  Majesty  the 
King  of   Siam;  His   Majesty  the  King  of   Sweden  and   Norway;  the   Swiss 


236  CONVENTIONS 

Federal  Council;  His  Majesty  the  Emperor  of  the  Ottomans  and  His  Royal 
Highness  the  Prince  of  Bulgaria ; 

Animated  by  a  strong  desire  to  work  for  the  maintenance  of  general  peace ; 

Resolved  to  promote  by  their  best  efforts  the  friendly  settlement  of  inter- 
national disputes; 

Recognizing  the  solidarity  uniting  the  members  of  the  society  of  civilized 
nations ; 

Desirous  of  extending  the  empire  of  law,  and  of  strengthening  the  apprecia- 
tion of  international  justice; 

Convinced  that  the  permanent  institution  of  a  tribunal  of  arbitration,  acces- 
sible to  all,  in  the  midst  of  the  independent  Powers,  will  contribute  effectively 
to  this  result ; 

Having  regard  to  the  advantages  attending  the  general  and  regular  organiza- 
tion of  the  procedure  of  arbitration ; 

Sharing  the  opinion  of  the  august  initiator  of  the  International  Peace 
Conference  that  it  is  expedient  to  record  in  an  international  agreement  the 
principles  of  equity  and  right  on  which  are  based  the  security  of  States  and  the 
welfare  of  peoples; 

Being  desirous  of  concluding  a  Convention  to  this  effect,  have  appointed  as 
their  plenipotentaries,  to  wit : 

[Here  follow  the  names  of  plenipotentaries.] 

Who,  after  having  communicated  their  full  powers,  found  in  good  and  due 
form,  have  agreed  on  the  following  provisions : 

[8]  PART  I. — The  Maintenance  of  General  Peace 

Article  1 

With  a  view  to  obviating,  as  far  as  possible,  recourse  to  force  in  the  relations 
between  States,  the  signatory  Powers  agree  to  use  their  best  efforts  to  ensure 
the  pacific  settlement  of  international  differences. 

PART  H. — Good  Offices  and  Mediation 
Article  2 

In  case  of  serious  disagreement  or  dispute,  before  an  appeal  to  arms,  the 
signatory  Powers  agree  to  have  recourse,  as  far  as  circumstances  allow,  to  the 
good  offices  or  mediation  of  one  or  more  friendly  Powers. 

Article  3 

Independently  of  this  recourse,  the  signatory  Powers  deem  it  expedient  that 
one  or  more  Powers,  strangers  to  the  dispute,  should,  on  their  own  initiative,  and 
as  far  as  circumstances  may  allow,  offer  their  good  offices  or  mediation  to  the 
States  at  variance. 

Powers,  strangers  to  the  dispute  have  the  right  to  offer  good  offices  or 
mediation,  even  during  the  course  of  hostilities. 

The  exercise  of  this  right  can  never  be  regarded  by  either  of  the  parties  in 
dispute  as  an  unfriendly  act. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  237 

Article  4 

The  part  of  the  mediator  consists  in  reconciUng  the  opposing  claims  and 
appeasing  the  feehngs  of  resentment  which  may  have  arisen  between  the  States 
at  variance. 

Article  5 

The  functions  of  the  mediator  are  at  an  end  when  once  it  is  declared,  either 
by  one  of  the  parties  to  the  dispute,  or  by  the  mediator  himself,  that  the  means 
of  reconciliation  proposed  by  him  are  not  accepted. 

Article  6 

Good  offices  and  mediation,  undertaken  either  at  the  request  of  the  parties 
in  dispute,  or  on  the  initiative  of  Powers  strangers  to  the  dispute,  have  ex- 
clusively the  character  of  advice  and  never  have  binding  force. 

Article  7 

The  acceptance  of  mediation  can  not,  unless  there  be  an  agreement  to  the 
contrary,  have  the  effect  of  interrupting,  delaying,  or  hindering  mobilization  or 
other  measures  of  preparation  for  war. 

If  it  takes  place  after  the  commencement  of  hostilities,  the  military  operations 
in  progress  are  not  interrupted,  unless  there  be  an  agreement  to  the  contrary. 

Article  8 

The  signatory  Powers  are  agreed  in  recommending  the  application,  when 
circumstances  allow,  of  special  mediation  in  the  following  form: 

In  case  of  a  serious  difference  endangering  the  peace,  the  States  at  variance 
choose  respectively  a  Power,  to  which  they  entrust  the  mission  of  entering  into 
direct  communication  with  the  Power  chosen  on  the  other  side,  with  the  object 
of  preventing  the  rupture  of  pacific  relations. 

For  the  period  of  this  mandate,  the  term  of  which,  unless  otherwise  stip- 
ulated, can  not  exceed  thirty  days,  the  States  in  dispute  cease  from  all  direct 
communication  on  the  subject  of  the  dispute,  which  is  regarded  as  referred 
exclusively  to  the  mediating  Powers,  which  must  use  their  best  efforts  to 
settle  it. 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are  charged 
with  the  joint  task  of  taking  advantage  of  any  opportunity  to  restore  peace. 

PART  III. — International  Commissions  of  Inquiry 
Article  9 

In  disputes  of  an  international  nature  involving  neither  honor  nor  essential 
interests,  and  arising  from  a  difference  of  opinion  on  points  of  fact,  the 
signatory  Powers  deem  it  expedient  that  the  parties  who  have  not  been  able  to 
come  to  an  agreement  by  means  of  diplomacy,  should,  as  far  as  circumstances 
allow,  institute  an  international  commission  of  inquiry,  to  facilitate  a  solution 
of  these  disputes  by  elucidating  the  facts  by  means  of  an  impartial  and  con- 
scientious investigation. 


238  CONVENTIONS 

[9]  Article  10 

The  international  commissions  of  inquiry  are  constituted  by  special  agree- 
ment between  the  parties  in  dispute. 

The  inquiry  convention  defines  the  facts  to  be  examined  and  the  extent  of  the 
powers  of  the  commissioners. 

It  settles  the  procedure. 

At  the  inquiry  both  sides  must  be  heard. 

The  form  and  the  periods  to  be  observed,  if  not  stated  in  the  inquiry 
convention,  are  decided  by  the  commission  itself. 

Article  11 

International  commissions  of  inquiry  are  formed,  unless  otherwise  stipulated, 
in  the  manner  determined  by  Article  32  of  the  present  Convention. 

Article  12 

The  Powers  in  dispute  undertake  to  supply  the  international  commission  of 
inquiry,  as  fully  as  they  may  think  possible,  with  all  means  and  facilities  necessary 
to  enable  it  to  become  completely  acquainted  with  and  to  accurately  understand 
the  facts  in  question. 

Article  13 

The  international  commission  of  inquiry  communicates  its  report  to  the 
Powers  in  dispute,  signed  by  all  the  members  of  the  commission. 

Article  14 

The  report  of  the  international  commission  of  inquiry  is  limited  to  a  finding 
of  facts,  and  has  in  no  way  the  character  of  an  award.  It  leaves  to  the  Powers 
in  dispute  entire  freedom  as  to  the  eflfect  to  be  given  to  this  finding. 

PART  IV. — International  Arbitration 

Chapter  I. — The  system  of  arbitration 

Article  15 

International  arbitration  has  for  its  object  the  settlement  of  disputes  between 
States  by  judges  of  their  own  choice  and  on  the  basis  of  respect  for  law. 

Article  16 

In  questions  of  a  legal  nature,  and  especially  in  the  interpretation  or  applica- 
tion of  international  conventions,  arbitration  is  recognized  by  the  signatory 
Powers  as  the  most  effective  and  at  the  same  time  the  most  equitable  means  of 
settling  disputes  which  diplomacy  has  failed  to  settle. 

Article  17 

The  arbitration  convention  is  concluded  for  questions  already  existing  or 
for  questions  which  may  arise  eventually. 

It  may  embrace  any  dispute  or  only  disputes  of  a  certain  category. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  239 

Article  18 

The  arbitration  convention  implies  an  engagement  to  submit  in  good  faith  to 
the  arbitral  award. 

Article  19  ; 

Independently  of  general  or  private  treaties  expressly  stipulating  recourse  to 
arbitration  as  obligatory  on  the  signatory  Powers,  these  Powers  reserve  to  them- 
selves the  right  of  concluding,  either  before  the  ratification  of  the  present  act  or 
later,  new  agreements,  general  or  private,  with  a  view  to  extending  obligatory 
arbitration  to  all  cases  which  they  may  consider  it  possible  to  submit  to  it. 

[10]  Chapter  II, — The  Permanent  Court  of  Arbitration 

Article  20 

With  the  object  of  facilitating  an  immediate  recourse  to  arbitration  for  in- 
ternational differences  which  it  has  not  been  possible  to  settle  by  diplomacy,  the 
signatory  Powers  undertake  to  organize  a  Permanent  Court  of  Arbitration^ 
accessible  at  all  times  and  operating,  unless  otherwise  stipulated  by  the  parties,  in 
accordance  with  the  rules  of  procedure  inserted  in  the  present  Convention. 

Article  21 

The  Permanent  Court  shall  be  competent  for  all  arbitration  cases,  unless 
the  parties  agree  to  institute  a  special  tribunal. 

Article  22 

An  International  Bureau,  established  at  The  Hague,  serves  as  registry  for 
the  Court. 

This  Bureau  is  the  channel  for  communications  relative  to  the  meetings  of 
the  Court. 

It  has  the  custody  of  the  archives  and  conducts  all  the  administrative 
business. 

The  signatory  Powers  undertake  to  communicate  to  the  International 
Bureau  at  The  Hague  a  duly  certified  copy  of  any  conditions  of  arbitration 
arrived  at  between  them  and  of  any  award  concerning  them  delivered  by  a  special 
tribunal. 

They  undertake  likewise  to  communicate  to  the  Bureau  the  laws,  regula- 
tions, and  documents  eventually  showing  the  execution  of  the  awards  given  by 
the  Court. 

Article  23 

Within  the  three  months  following  its  ratification  of  the  present  act,  each 
signatory  Power  shall  select  four  persons  at  the  most,  of  known  competency  in 
questions  of  international  law,  of  the  highest  moral  reputation,  and  disposed 
to  accept  the  duties  of  arbitrators. 

The  persons  thus  selected  shall  be  inscribed,  as  members  of  the  Court,  in 
a  list  which  shall  be  notified  to  all  the  signatory  Powers  by  the  Bureau. 

Any  alteration  in  the  list  of  arbitrators  is  brought  by  the  Bureau  to  the 
knowledge  of  the  signatory  Powers. 


240  CONVENTIONS 

Two  or  more  Powers  may  agree  on  the  selection  in  common  of  one  or  more 
members. 

The  same  person  can  be  selected  by  different  Powers. 

The  members  of  the  Court  are  appointed  for  a  term  of  six  years.  Their 
appointments  can  be  renewed. 

In  case  of  the  death  or  retirement  of  a  member  of  the  Court,  his  place 
is  filled  in  the  same  way  as  he  was  appointed. 

Article  24 

When  the  signatory  Powers  wish  to  have  recourse  to  the  Permanent  Court 
for  the  settlement  of  a  difference  that  has  arisen  between  them,  the  arbitrators 
called  upon  to  form  the  tribunal  competent  to  decide  this  difference  must  be 
chosen  from  the  general  list  of  members  of  the  Court. 

Failing  the  composition  of  the  arbitration  tribunal  by  direct  agreement  of 
the  parties,  the  following  course  is  pursued: 

Each  party  appoints  two  arbitrators,  and  these  together  choose  an  umpire. 

If  the  votes  are  equally  divided,  the  choice  of  the  umpire  is  entrusted  to  a 
third  Power,  selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects  a 
different  Power,  and  the  choice  of  the  umpire  is  made  in  concert  by  the  Powers 
thus  selected. 

The  tribunal  being  thus  composed,  the  parties  notify  to  the  Bureau  their 
determination  to  have  recourse  to  the  Court  and  the  names  of  the  arbitrators. 

The  tribunal  of  arbitration  assembles  on  the  date  fixed  by  the  parties. 

The  members  of  the  Court,  in  the  performance  of  their  duties  and  out  of 
their  own  country,  enjoy  diplomatic  privileges  and  immunities. 

Article  25 

The  tribunal  of  arbitration  sits  ordinarily  at  The  Hague. 
Except  in  cases  of  necessity,  the  place  of  session  can  only  be  altered  by  the 
tribunal  with  the  assent  of  the  parties. 

[11]  Article  26 

The  International  Bureau  at  The  Hague  is  authorized  to  place  its  premises 
and  staff  at  the  disposal  of  the  signatory  Powers  for  the  use  of  any  special  board 
«of  arbitration. 

The  jurisdiction  of  the  Permanent  Court  may,  within  the  conditions  laid 
down  in  the  regulations,  be  extended  to  disputes  between  non-signatory  Powers, 
or  between  signatory  Powers  and  non-signatory  Powers,  if  the  parties  are  agreed 
to  have  recourse  to  this  tribunal. 

Article  27 

The  signatory  Powers  consider  it  their  duty,  if  a  serious  dispute  threatens  to 
break  out  between  two  or  more  of  them,  to  remind  these  latter  that  the  Perma- 
nent Court  is  open  to  them. 

Consequently,  they  declare  that  the  fact  of  reminding  the  parties  at  variance 
of  the  provisions  of  the  present  Convention,  and  the  advice  given  to  them,  in 
the  highest  interests  of  peace,  to  have  recourse  to  the  Permanent  Court,  can 
only  be  regarded  as  in  the  nature  of  good  offices. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  241 

Article  28 

A  Permanent  Administrative  Council,  composed  of  the  diplomatic  represen- 
tatives of  the  signatory  Powers  accredited  to  The  Hague  and  of  the  Netherland 
Minister  for  Foreign  Affairs,  who  will  act  as  president,  shall  be  instituted  in 
this  town  as  soon  as  possible  after  the  ratification  of  the  present  act  by  at  least 
nine  Powers. 

This  Council  will  be  charged  with  the  establishment  and  organization  of  the 
International  Bureau,  which  will  be  under  its  direction  and  control. 

It  will  notify  to  the  Powers  the  constitution  of  the  Court  and  will  provide  for 
its  installation. 

It  will  settle  its  rules  of  procedure  and  all  other  necessary  regulations. 

It  will  decide  all  questions  of  administration  which  may  arise  with  regard  to 
the  operation  of  the  Court. 

It  will  have  entire  control  over  the  appointment,  suspension  or  dismissal  of 
the  officials  and  employees  of  the  Bureau. 

It  will  fix  the  payments  and  salaries,  and  control  the  general  expenditure. 

At  meetings  duly  summoned  the  presence  of  five  members  is  sufficient  to 
render  valid  the  discussions  of  the  Council.  The  decisions  are  taken  by  a  majority 
of"  votes. 

The  Council  communicates  to  the  signatory  Powers  without  delay  the 
regulations  adopted  by  it.  It  addresses  to  them  an  annual  report  on  the  labors 
of  the  Court,  the  working  of  the  administration,  and  the  expenditure. 

Article  29 

The  expenses  of  the  Bureau  shall  be  borne  by  the  signatory  Powers  in  the 
proportion  fixed  for  the  International  Bureau  of  the  Universal  Postal  Union. 

Chapter  III. — Arbitration  procedure 

Article  30 

With  a  view  to  encouraging  the  development  of  arbitration,  the  signatory 
Powers  have  agreed  on  the  following  rules  which  shall  be  applicable  to  arbitration 
procedure,  unless  other  rules  have  been  agreed  on  by  the  parties. 

Article  31 

The  Powers  which  have  recourse  to  arbitration  sign  a  special  act  (compro- 
mis),  in  which  are  clearly  defined  the  subject  of  the  dispute  and  the  extent  of  the 
arbitrators'  powers.  This  act  implies  an  engagement  of  the  parties  to  submit  in 
good  faith  to  the  arbitral  award. 

Article  32 

The  duties  of  arbitrator  may  be  conferred  on  one  arbitrator  alone  or  on 
several  arbitrators  selected  by  the  parties  as  they  please,  or  chosen  by  them  from 
the  members  of  the  Permanent  Court  of  Arbitration  established  by  the  present 
act. 

Failing  the  composition  of  the  tribunal  by  direct  agreement  of  the  parties, 
the  following  course  is  pursued : 
[12]  Each  party  appoints  two  arbitrators,  and  these  together  choose  an  umpire. 


242  CONVENTIONS 

If  the  votes  are  equally  divided  the  choice  of  the  umpire  is  entrusted  to  a 
third  Power,  selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects  a  different 
Power,  and  the  choice  of  the  umpire  is  made  in  concert  by  the  Powers  thus 
selected. 

Article  33 

When  a  sovereign  or  the  chief  of  a  State  is  chosen  as  arbitrator,  the  arbitra- 
tion procedure  is  settled  by  him. 

Article  34 

The  umpire  is  ex  officio  president  of  the  tribunal. 

When  the  tribunal  does  not  include  an  umpire,  it  appoints  its  own  president. 

Article  35 

In  case  of  the  death,  retirement,  or  disability  from  any  cause  of  one  of  the 
arbitrators,  his  place  is  filled  in  the  same  way  as  he  was  appointed. 

Article  36 

The  tribunal's  place  of  session  is  selected  by  the  parties.  Failing  this  selec- 
tion the  tribunal  sits  at  The  Hague. 

The  place  thus  fixed  can  not,  except  in  case  of  necessity,  be  altered  by  the 
tribunal  without  the  assent  of  the  parties. 

Article  37 

.  The  parties  are  entitled  to  appoint  delegates  or  special  agents  to  attend  the 
tribunal  to  act  as  intermediaries  between  themselves  and  the  tribunal. 

They  are  further  authorized  to  commit  the  defense  of  their  rights  and 
interests  before  the  tribunal  to  counsel  or  advocates  appointed  by  them  for  this 
purpose. 

Article  38 

The  tribunal  decides  on  the  choice  of  languages  to  be  used  by  itself,  and  to  be 
authorized  for  use  before  it. 

Article  39 

As  a  general  rule  arbitration  procedure  comprises  two  distinct  phases: 
pleadings  and  oral  discussions. 

The  pleadings  consist  in  the  communication  by  the  respective  agents  to  the 
members  of  the  tribunal  and  the  opposite  party  of  all  printed  or  written  acts  and 
of  all  documents  containing  the  grounds  relied  on  in  the  case.  This  communica- 
tion shall  be  made  in  the  form  and  within  the  time  fixed  by  the  tribunal  in 
accordance  with  Article  49. 

The  discussions  consist  in  the  oral  development  before  the  tribunal  of  the 
arguments  of  the  parties. 


Article  40 
Every  document  produced  by  one  party  must  be  communicated  to  the  other 


party. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  243 

Article  41 

The  discussions  are  under  the  direction  of  the  president. 

They  are  only  public  if  it  be  so  decided  by  the  tribunal,  with  the  assent  of 
the  parties. 

They  are  recorded  in  minutes  drawn  up  by  the  secretaries  appointed  by  the 
president.     These  minutes  alone  have  an  authentic  character. 

Article;  42 

After  the  close  of  the  pleadings,  the  tribunal  is  entitled  to  refuse  discussion 
of  all  new  papers  or  documents  which  one  of  the  parties  may  wish  to  submit 
to  it  without  the  consent  of  the  other  party. 

Article  43 

The  tribunal  is  free  to  take  into  consideration  new  papers  or  documents  to 
[13]  which  its  attention  may  be  drawn  by  the  agents  or  counsel  of  the  parties. 

In  this  case,  the  tribunal  has  the  right  to  require  the  production  of  these 
papers  or  documents,  but  is  obliged  to  make  them  known  to  the  opposite  party. 

Article  44 

The  tribunal  can,  besides,  require  from  the  agents  of  the  parties  the  produc- 
tion of  all  papers,  and  can  demand  all  necessary  explanations.  In  case  of  refusal, 
the  tribunal  takes  note  of  it. 

Article  45 

The  agents  and  counsel  of  the  parties  are  authorized  to  present  orally  to  the 
tribunal  all  the  arguments  they  may  consider  expedient  in  defense  of  their  case. 

Article  46 

They  are  entitled  to  raise  objections  and  points.  The  decisions  of  the  tribunal 
on  these  points  are  final,  and  can  not  form  the  subject  of  any  subsequent 
discussion. 

Article  47 

The  members  of  the  tribunal  are  entitled  to  put  questions  to  the  agents  and 
counsel  of  the  parties,  and  to  ask  them  for  explanations  on  doubtful  points. 

Neither  the  questions  put,  nor  the  remarks  made  by  members  of  the  tribunal 
in  the  course  of  the  discussions  can  be  regarded  as  an  expression  of  opinion  by 
the  tribunal  in  general,  or  by  its  members  in  particular. 

Article  48 

The  tribunal  is  authorized  to  declare  its  competence  in  interpreting  the 
compromis  as  well  as  the  other  treaties  which  may  be  invoked  in  the  case,  and 
in  applying  the  principles  of  international  law. 

Article  49 

The  tribunal  is  entitled  to  issue  rules  of  procedure  for  the  conduct  of  the 
case,  to  decide  the  forms  and  time  in  which  each  party  must  conclude  its  argu- 
ments, and  to  arrange  all  the  formalities  required  for  dealing  with  the  evidence. 


244  CONVENTIONS 

Article  50 

When  the  agents  and  counsel  of  the  parties  have  submitted  all  the  expla- 
nations and  evidence  in  support  of  their  case,  the  president  pronounces  the 
discussion  closed. 

Article  51 

The  deliberations  of  the  tribunal  take  place  in  private.  Every  decision  is 
taken  by  a  majority  of  members  of  the  tribunal. 

The  refusal  of  a  member  to  vote  must  be  recorded  in  the  minutes. 

Article  52 

The  award,  given  by  a  majority  of  votes,  must  state  the  reasons  on  which  it  is 
based.    It  is  drawn  up  in  writing  and  signed  by  each  member  of  the  tribunal. 

Those  members  who  are  in  the  minority  may  record  their  dissent  when 
signing. 

Article  53 

The  award  is  read  out  at  a  public  sitting  of  the  tribunal,  the  agents  and 
counsel  of  the  parties  being  present,  or  duly  summoned  to  attend. 

Article  54 

The  award,  duly  pronounced  and  notified  to  the  agents  of  the  parties  at 
variance,  settles  the  dispute  definitively  and  without  appeal. 

Article  55 

The  parties  can  reserve  in  the  compromis  the  right  to  demand  the  revision 
of  the  award. 

In  this  case,  and  unless  there  be  an  agreement  to  the  contrary,  the  demand 

must  be  addressed  to  the  tribunal  which  pronounced  the  award.     It  can  only  be 

made  on  the  ground  of  the  discovery  of  some  new  fact  which  is  of  a  nature 

to  exercise  a  decisive  influence  upon  the  award  and  which,  at  the  time 

[14]  the  discussion  was  closed,  was  unknown  to  the  tribunal  and  to  the  party 

demanding  the  revision.  ^ 

Proceedings  for  revision  can  only  be  instituted  by  a  decision  of  the  tribunal 
expressly  recording  the  existence  of  the  new  fact,  recognizing  in  it  the  character 
described  in  the  preceding  paragraph,  and  declaring  the  demand  admissible  on  this 
ground. 

The  compromis  fixes  the  period  within  which  the  demand  for  revision  must 
be  made. 

Article  56 

The  award  is  binding  only  on  the  parties  who  concluded  the  compromis. 

When  there  is  a  question  as  to  the  interpretation  of  a  convention  to  which 
Powers  other  than  those  in  dispute  are  parties,  the  latter  notify  to  the  former  the 
compromis  they  have  concluded.  Each  of  these  Powers  is  entitled  to  intervene  in 
the  case.  If  one  or  more  avail  themselves  of  this  right,  the  interpretation  con- 
tained in  the  award  is  equally  binding  on  them. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  245 

Article  57 
Each  party  pays  its  own  expenses  and  an  equal  share  of  the  expenses  of  the 
tribunal. 

General  Provisions 

Article  58 

The  present  Convention  shall  be  ratified  as  speedily  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  proces-verbal  shall  be  drawn  up  recording  the  receipt  of  each  ratification, 
and  a  copy  duly  certified  shall  be  sent,  through  the  diplomatic  channel,  to  all  the 
Powers  that  were  represented  at  the  International  Peace  Conference  at  The 
Hague. 

Article  59 
Non-signatory  Powers  which  have  been  represented  at  the  International 
Peace  Conference  may  adhere  to  the  present  Convention,  For  this  purpose  they 
must  make  known  their  adhesion  to  the  contracting  Powers  by  a  written  notifi- 
cation addressed  to  the  Netherland  Government,  and  communicated  by  it  to  all 
the  other  contracting  Powers. 

Article  60 
The  conditions  on  which  the  Powers  which  have  not  been  represented  at  the 
International  Peace  Conference  may  adhere  to  the  present  Convention  shall  form 
the  subject  of  a  subsequent  agreement  between  the  contracting  Powers. 

Article  61 

In  the  event  of  one  of  the  high  contracting  Parties  denouncing  the  present 
Convention,  this  denunciation  would  not  take  effect  until  a  year  after  its  notifi- 
cation made  in  writing  to  the  Netherland  Government,  and  by  it  communicated 
at  once  to  all  the  other  contracting  Powers. 

This  denunciation  shall  have  effect  only  in  regard  to  the  notifying  Power. 

In  faith  of  which  the  plenipotentiaries  have  signed  the  present  Convention 
and  have  affixed  their  seals  thereto. 

Done  at  The  Hague,  July  29,  1899,  in  a  single  original,  which  shall  remain 
deposited  in  the  archives  of  the  Netherland  Government,  and  copies  of  which, 
duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  the  contracting 
Powers. 

For  Germany:  

For  Austria-Hungary:  

For  Belgium:  (Signed)  A.  Beernaert. 

(Signed)  Cte.  de  Grelle  Rogier. 

(Signed)  Chr.  Descamps. 

For  China:  

For  Denmark:  (Signed)  F.  Bille. 

For  Spain:  (Signed)  El  Duque  de  Tetuan. 

(Signed)  W.  R.  de  Villa  Urrutia. 

(Signed)  Arturo  de  Baguer. 


246 


CONVENTIONS 


[15]  For  the  United  States  of  America:'^ 

For  the  United  Mexican  States: 
For  France: 


For  Great  Britain  and  Ireland: 

For  Greece: 

For  Italy: 

For  Japan: 

For  Luxemburg: 

For  Montenegro: 

For  the  Netherlands: 


For  Persia: 
For  Portugal: 

For  Roumania:'^ 
For  Russia: 


For  Serbia: 
For  Siam: 

For  Sweden  and  Norway: 
For  Switzerland: 
For  Turkey: 
For  Bulgaria: 


Signed)  Andrew  D.  White, 
Signed)  Seth  Low. 
Signed)  Stanford  Newel. 
Signed)  A.  T.  Mahan. 
Signed)  William  Crozier. 
Signed)  A.  de  Mier. 
Signed)  J.  Zenil. 
Signed)  Leon  Bourgeois. 
Signed)  G.  Bihourd. 
Signed)  d'Estournelles  de 
Constant. 


(Signed) 

N.  Delyanni. 

(Signed) 

Staal. 

(Signed) 

V.  Karnebeek. 

(Signed) 

den  Beer  Poortugael. 

(Signed) 

T.  M.  C.  AssER. 

(Signed) 

E.  N.  Rahusen. 

(Signed) 

Mirza  Riza  Khan,  Arfa- 

ud-Dovleh. 

(Signed) 

Conde  de  Macedo. 

(Signed) 

Agostinho   d'Ornellas   de 

Vasconcellos. 

(Signed) 

Conde  de  Selir. 

(Signed) 

A.  Beldiman. 

(Signed)  J.  N.  Papiniu. 

(Signed) 

Staal. 

(Signed) 

Martens. 

(Signed) 

A.  Basily. 

(Signed) 

Phya  Suriya  Nuvatr. 

(Signed) 

ViSUDDHA. 

(Signed) 

BiLDT. 

Signed)  D.  Stancioff. 
Signed)  Major  Hessaptchieff. 


*  Under  reservation  of  the  declaration  made  at  the  plenary  session  of  the  Conference  on 
July  25,  1899. 

'  Under  the  reservations  formulated  with  respect  to  Articles  16,  17,  and  19  of  the  present 
Convention  (15,  16,  and  18  of  the  project  presented  by  the  committee  of  examination),  and 
recorded  in  the  proces-verbal  of  the  meeting  of  the  Third  Commission  of  July  20,  1899. 


MARITIME  WARFARE  AND  THE  GENEVA  CONVENTION  247 

116] 

CONVENTION  FOR  THE  ADAPTATION  TO  MARITIME  WARFARE 
OF  THE  PRINCIPLES  OF  THE  GENEVA  CONVENTION  OF 

AUGUST  22,  1864 

{For  the  heading  see  the  Convention  for  the  pacific  settlement  of  international 

disputes.) 

Animated  alike  by  the  desire  to  diminish  as  far  as  depends  on  them  the 
inevitable  evils  of  war,  and  wishing  with  this  object  to  adapt  to  maritime  warfare 
the  principles  of  the  Geneva  Convention  of  August  22,  1864,  have  resolved  to 
conclude  a  convention  for  this  purpose. 

They  have  in  consequence  appointed  the  following  as  their  plenipotentiaries : 

[Here  follow  the  names  of  plenipotentiaries.] 

Who,  after  having  communicated  their  full  powers,  found  in  good  and  due 
form,  have  agreed  upon  the  following  provisions: 

Article  1 

Military  hospital  ships,  that  is  to  say,  ships  constructed  or  assigned  by  States 
specially  and  solely  with  the  view  to  assist  the  wounded,  sick  and  shipwrecked, 
the  names  of  which  have  been  communicated  to  the  belligerent  Powers  at  the 
commencement  or  during  the  course  of  hositilities,  and  in  any  case  before  they 
are  employed,  shall  be  respected  and  can  not  be  captured  while  hostilities  last: 

These  ships,  moreover,  are  not  on  the  same  footing  as  men-of-war  as  regards 
their  stay  in  a  neutral  port. 

Article  2 

Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  individ- 
uals or  officially  recognized  relief  societies,  shall  likewise  be  respected  and  exempt 
from  capture,  if  the  belligerent  Power  to  which  they  belong  has  given  them  an 
official  commission  and  has  notified  their  names  to  the  hostile  Power  at  the  com- 
mencement of  or  during  hostilities,  and  in  any  case  before  they  are  employed. 

These  ships  shall  be  provided  with  a  certificate  from  the  competent  authori- 
ties, declaring  that  they  had  been  under  their  control  while  fitting  out  and  on  final 
departure. 

Article  3 

Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  individ- 
uals or  officially  recognized  societies  of  neutral  countries,  shall  be  respected  and 
exempt  from  capture,  if  the  neutral  Power  to  which  they  belong  has  given  them 
an  official  commission  and  has  notified  their  names  to  the  belligerent  Powers  at 
the  commencement  of  or  during  hostilities,  and  in  any  case  before  they  are 
employed. 

Article  4 

The  ships  mentioned  in  Articles  1,  2  and  3  shall  afford  relief  and  assistance 
to  the  wounded,  sick,  and  shipwrecked  of  the  belligerents  without  distinction  of 
nationality. 

The  Governments  undertake  not  to  use  these  ships  for  any  military  purpose. 


248  CONVENTIONS 

These  ships  must  in  nowise  hamper  the  movements  of  the  combatants. 
[17]  During  and  after  an  engagement  they  will  act  at  their  own  risk  and  peril. 

The  belligerents  will  have  the  right  to  control  and  search  them;  they  can 
refuse  to  help  them,  order  them  off,  make  them  take  a  certain  course,  and  put  a 
commissioner  on  board;  they  can  even  detain  them,  if  important  circumstances 
require  it. 

As  far  as  possible  the  belligerents  shall  enter  in  the  log  of  the  hospital  ships 
the  orders  which  they  give  them. 

Article  5 

Military  hospital  ships  shall  be  distinguished  by  being  painted  white  outside 
with  a  horizontal  band  of  green  about  a  metre  and  a  half  in  breadth. 

The  ships  mentioned  in  Articles  2  and  3  shall  be  distinguished  by  being 
painted  white  outside  with  a  horizontal  band  of  red  about  a  metre  and  a  half  in 
breadth. 

The  boats  of  the  ships  above-mentioned,  as  also  small  craft  which  may  be 
used  for  hospital  work,  shall  be  distinguished  by  similar  painting. 

All  hospital  ships  shall  make  themselves  known  by  hoisting,  with  their 
national  flag,  the  white  flag  with  a  red  cross  provided  by  the  Geneva  Convention. 

Article  6 

Neutral  merchantmen,  yachts,  or  vessels,  having,  or  taking  on  board,  sick, 
wounded,  or  shipwrecked  of  the  belligerents,  cannot  be  captured  for  so  doing, 
but  they  are  liable  to  capture  for  any  violation  of  neutrality  they  may  have 
committed. 

Article  7 

The  religious,  medical,  and  hospital  staflf  of  any  captured  ship  is  inviolable, 
and  its  members  cannot  be  made  prisoners  of  war.  On  leaving  the  ship  they  take 
with  them  the  objects  and  surgical  instruments  which  are  their  own  private 
property. 

This  staff  shall  continue  to  discharge  its  duties  while  necessary,  and  can  after- 
wards leave  when  the  commander  in  chief  considers  it  possible. 

The  belligerents  must  guarantee  to  the  said  staff  when  it  has  fallen  into  their 
hands  the  enjoyment  of  their  salaries  intact. 

Article  8 

Sailors  and  soldiers  on  board  when  sick  or  wounded,  to  whatever  nation  they 
belong,  shall  be  protected  and  tended  by  the  captors. 

Article  9 

The  shipwrecked,  wounded,  or  sick  of  one  of  the  belligerents  who  fall  into 
the  power  of  the  other,  are  prisoners  of  war.  The  captor  must  decide,  according 
to  circumstances,  whether  to  keep  them,  send  them  to  a  port  of  his  own  country, 
to  a  neutral  port,  or  even  to  an  enemy  port.  In  this  last  case,  prisoners  thus 
repatriated  cannot  serve  again  while  the  war  lasts. 


MARITIME  WARFARE  AND  THE  GENEVA  CONVENTION  249 

Article  10' 

The  shipwrecked,  wounded,  or  sick,  who  are  landed  at  a  neutral  port,  with 
the  consent  of  the  local  authorities,  must,  unless  an  arrangement  is  made  to  the 
contrary  between  the  neutral  State  and  the  belligerent  States,  be  guarded  by 
the  neutral  State  so  as  to  prevent  their  again  taking  part  in  the  operations  of  the 
war. 

The  expenses  of  tending  them  in  hospital  and  interning  them  shall  be  borne 
by  the  State  to  which  the  shipwrecked,  sick,  or  wounded  belong. 

Article  11 

The  rules  contained  in  the  above  articles  are  binding  only  on  the  contracting 
Powers,  in  case  of  war  between  two  or  more  of  them. 

The  said  rules  shall  cease  to  be  binding  from  the  time  when,  in  a  war  between 
the  contracting  Powers,  one  of  the  belligerents  is  joined  by  a  non-contracting 
Power. 

Article  12 

The  present  Convention  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

On  the  receipt  of  each  ratification  a  proces-verbal  shall  be  drawn  up,  a  copy  of 
which,  duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  all  the  con- 
tracting Powers. 

Article  13 

[18]   Non-signatory  Powers  which  have  accepted  the   Geneva  Convention  of 
August  22,  1864,  may  adhere  to  the  present  Convention. 
For  this  purpose  they  must  make  their  adhesion  known  to  the  contracting 
Powers  by  means  of  a  written  notification  addressed  to  the  Netherland  Govern- 
ment, and  by  it  communicated  to  all  the  other  contracting  Powers. 

Article  14 

In  the  event  of  one  of  the  high  contracting  Parties  denouncing  the  present 
Convention,  such  denunciation  shall  not  take  effect  until  a  year  after  the  notifica- 
tion made  in  writing  to  the  Netherland  Government,  and  forthwith  communicated 
by  it  to  all  the  other  contracting  Powers. 

This  denunciation  shall  have  effect  only  in  regard  to  the  notifying  Power. 

In  faith  of  -which  the  respective  plenipotentiaries  have  signed  the  present 
Convention  and  have  affixed  their  seals  thereto. 

Done  at  The  Hague,  July  29,  1899,  in  a  single  original,  which  shall  remain 
deposited  in  the  archives  of  the  Netherland  Government,  and  copies  of  which, 
duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  the  contracting 
Powers. 

*  [Germany,  the  United  States,  Great  Britain,  and  Turkey  signed  this  Convention  under 
reservation  of  Article  10.  On  an  understanding  subsequently  reached  by  the  Government  of 
the  Netherlands  and  the  signatory  Powers  it  was  agreed  to  exclude  this  article  from  the 
ratifications  of  the  Convention.  The  Article  was,  however,  adopted  in  the  above  form  at 
the  Second  Hague  Conference  and  appears  as  Article  15  in  Convention  No.  10,  Actes  et 
•documents,  vol.  i,  p.  661 ;  this  translation,  p.  653. 


250 


CONVENTIONS 


For  Germany:''- 

For  Austria-Hungary: 

For  Belgium: 


For  China: 
For  Denmark: 
For  Spain: 


For  the  United  States  of  America:  ^ 
For  the  United  Mexican  States: 

For  France: 


For  Great  Britain  and  Ireland:^ 

For  Greece: 

For  Italy: 

For  Japan: 

For  Luxemburg: 

For  Montenegro: 

For  the.  Netherlands: 


For  Persia: 
For  Portugal: 

For  Roumania: 
For  Russia: 


For  Serbia: 
For  Siam: 

For  Sweden  and  Norway: 
For  Switzerland: 
For  Turkey: 
For  Bulgaria: 

*  [Signed  later.    See  footnote  to  Article 


(Signed)  A.  Beernaert. 
(Signed)   Cte.  de  Grelle  Rogier. 
(Signed)  ,Chr.  Descamps. 

(Signed)  F.  Bille. 
(Signed)  El  Duque  de  Tetuan, 
(Signed)  W.  R.  de  Villa  Urrutia. 
(Signed)  Arturo  de  Baguer. 


(Signed) 

A.  de  Mier. 

(Signed)  J.  Zenil. 

(Signed) 

Leon  Bourgeois. 

(Signed) 

G.  Bihourd. 

(Signed) 

d'Estournelles  de 

Constant. 

(Signed) 

N.  Delyanni. 

(Signed) 

Staal. 

(Signed) 

V.  Karnebeek. 

(Signed) 

DEN  Beer  Poortugael. 

(Signed) 

T.  M.  C.  Asser. 

(Signed) 

E.  N.  Rahusen. 

(Signed) 

MiRZA  RizA  Khan,  Arfa- 

UD-DOVLEH. 

(Signed) 

Conde  de  Macedo. 

(Signed) 

Agostinho   d'Ornellas   de 

Vasconcellos. 

(Signed) 

Conde  de  Selir. 

(Signed) 

A.  Beldiman. 

(Signed)  J.  N.  Papiniu. 

(Signed) 

Staal. 

(Signed) 

Martens. 

(Signed) 

A.  Basily. 

(Signed)   Phya  Suriya  Nuvatr. 
(Signed)  Visuddha. 
(Signed)  Bildt. 


(Signed)  D.  Stancioff. 
(Signed)  Major  Hessaptchieff. 
ID,  supra.] 


LAWS  AND  CUSTOMS  OF  WAR  ON  LAND  251 

[19] 

CONVENTION   RESPECTING  THE  LAWS  AND   CUSTOMS 
OF  WAR  ON  LAND 

{For  the  heading  see  the  Convention  for  the  pacific  settlement  of  international 

disputes. ) 

Considering  that,  while  seeking  means  to  preserve  peace  and  prevent  armed 
conflicts  between  nations,  it  is  likewise  necessary  to  bear  in  mind  the  case  where 
an  appeal  to  arms  may  be  brought  about  by  events  which  their  solicitude  could  not 
avert ; 

Animated  by  the  desire  to  serve,  even  in  this  extreme  case,  the  interests  of 
humanity  and  the  ever  progressive  needs  of  civilization ; 

Thinking  it  important,  with  this  object,  to  revise  the  general  laws  and 
customs  of  war,  either  with  the  view  of  defining  them  with  greater  precision,  or 
of  confining  them  within  such  limits  as  would  mitigate  their  severity  as  far  as 
possible ; 

Inspired  by  these  views  which  are  enjoined  at  the  present  day,  as  they  were 
twenty-five  years  ago  at  the  time  of  the  Brussels  Conference  in  1874,  by  a  wise 
and  generous  forethought; 

Have,  in  this  spirit,  adopted  a  great  number  of  provisions,  the  object  of 
which  is  to  define  and  govern  the  usages  of  war  on  land. 

According  to  the  views  of  the  high  contracting  Parties,  these  provisions,  the 
wording  of  which  has  been  inspired  by  the  desire  to  diminish  the  evils  of  war, 
so  far  as  military  requirements  permit,  are  intended  to  serve  as  a  general  rule  of 
conduct  for  the  belligerents  in  their  mutual  relations  and  in  their  relations  with 
the  inhabitants. 

It  has  not,  however,  been  found  possible  at  present  to  concert  regulations 
covering  all  the  circumstances  which  arise  in  practice; 

On  the  other  hand,  the  high  contracting  Parties  clearly  do  not  intend  that 
unforeseen  cases  should,  in  the  absence  of  a  written  undertaking,  be  left  to  the 
arbitrary  judgment  of  military  commanders. 

Until  a  more  complete  code  of  the  laws  of  war  has  been  issued,  the  high 
contracting  Parties  deem  it  expedient  to  declare  that,  in  cases  not  included  in  the 
regulations  adopted  by  them,  the  inhabitants  and  the  belligerents  remain  under 
the  protection  and  the  rule  of  the  principles  of  the  law  of  nations,  as  they  result 
from  the  usages  established  among  civilized  peoples,  from  the  laws  of  humanity, 
and  from  the  dictates  of  the  public  conscience. 

They  declare  that  it  is  in  this  sense  especially  that  Articles  1  and  2  of  the 
Regulations  adopted  must  be  understood. 

The  high  contracting  Parties,  wishing  to  conclude  a  Convention  to  this  effect, 
have  appointed  as  their  plenipotentiaries,  to  wit : 

[Here  follow  the  names  of  plenipotentiaries.] 

Who,  after  communication  of  their  full  powers,  found  in  good  and  due  form, 
have  agreed  upon  the  following: 

Article  1 

The  high  contracting  Parties  shall  issue  instructions  to  their  armed  land 
forces,  which  shall  be  in  conformity  with  the  "  Regulations  respecting  the  laws 
and  customs  of  war  on  land  "  annexed  to  the  present  Convention. 


252  CONVENTIONS 

Article  2 

The  provisions  contained  in  the  Regulations  referred  to  in  Article  1  are  only 
binding  on  the  contracting  Powers,  in  case  of  war  between  two  or  more  of 
[20]  them. 

These  provisions  shall  cease  to  be  binding  from  the  time  when,  in  a  war 
between  contracting  Powers,  a  non-contracting  Power  joins  one  of  the  bellig- 
erents. 

Article  3 

The  present  Convention  shall  be  ratified  as  speedily  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  proch-verhal  shall  be  drawn  up  recording  the  receipt  of  each  ratification, 
and  a  copy,  duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  all  the 
contracting  Powers. 

Article  4 

Non-signatory  Powers  are  allowed  to  adhere  to  the  present  Convention. 

For  this  purpose  they  must  make  their  adhesion  known  to  the  contracting 
Powers  by  means  of  a  written  notification,  addressed  to  the  Netherland  Govern- 
ment, and  by  it  communicated  to  all  the  other  contracting  Powers. 

Article  5 

In  the  event  of  one  of  the  high  contracting  Parties  denouncing  the  present 
Convention,  such  denunciation  would  not  take  effect  until  a  year  after  the  written 
notification  made  to  the  Netherland  Government,  and  by  it  at  once  communicated 
to  all  the  other  contracting  Powers. 

This  denunciation  shall  have  effect  only  in  regard  to  the  notifying  Power. 

In  faith  of  which  the  plenipotentiaries  have  signed  the  present  Convention 
and  have  affixed  their  seals  thereto. 

Done  at  The  Hague,  July  29,  1899,  in  a  single  original,  which  shall  remain 
deposited  in  the  archives  of  the  Netherland  Government,  and  copies  of  which, 
duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  the  contracting 
Powers. 


For  Germany:  

For  Austria-Hungary:  

For  Belgium:  (Signed)  A.  Beernaert. 

(Signed)  Cte,  de  Grelle  Rogier. 

(Signed)   Chr.  Descamps. 

For  China:  

For  Denmark:  (Signed)  F.  Bille. 

For  Spain:  (Signed)  El  Duque  de  Tetuan. 

(Signed)  W.  R.  de  Villa  Urrutia. 

(Signed)  Arturo  de  Baguer. 

For  the  United  States  of  America:      

For  the  United  Mexican  States:  (Signed)  A.  de  Mier. 

(Signed)  J.  Zenil. 


LAWS  AND  CUSTOMS  OF  WAR  ON  LAND  253 

For  France:  (Signed)  Leon  Bourgeois. 

(Signed)  G.  Bihourd, 

(Signed)  d'Estournelles  de 
Constant. 

For  Great  Britain  and  Ireland:  

For  Greece:  (Signed)  N.  Delyanni. 

For  Italy:  

For  Japati:  

For  Luxemburg:  

For  Montenegro:  (Signed)  Staal. 

For  the  Netherlands:  (Signed)  v.  Karnebeek. 

(Signed)  den  Beer  Poortugael. 

(Signed)  T.  M.  C.  Asser. 

(Signed)  E.  N.  Rahusen. 
For  Persia:  (Signed)  Mirza  Riza  Khan,  Arfa- 

ud-Dovleh. 
For  Portugal:  (Signed)  Conde  de  Macedo. 

(Signed)  Agostinho   d'Ornellas  de 
Vasconcellos. 
For  Roumania:  (Signed)  A.  Beldiman. 

(Signed)  J.  N.  Papiniu. 
[21]  For  Russia:  (Signed)  Staal. 

(Signed)  Martens. 

(Signed)  A.  Basily. 

For  Serbia:  

For  Siam:  (Signed)  Phya  Suriya  Nuvatr. 

(Signed)  Visuddha. 
For  Sweden  and  Norway:  (Signed)  Bildt. 

For  Switzerland:  

For  Turkey:  

For  Bulgaria:  (Signed)  D,  Stancioff. 

(Signed)  Major  Hessaptchieff. 


Annex  to  the  Convention 

REGULATIONS  RESPECTING  THE  LAWS  AND  CUSTOMS  OF  WAR 

ON  LAND 


SECTION  I. — On  Belligerents 


Chapter  I. — The  qualifications  of  belligerents 

Article  1 

The  laws,  rights,  and  duties  of  war  apply  not  only  to  armies,  but  also  to 
militia  and  volunteer  corps  fulfilling  the  following  conditions : 

1.  That  they  be  commanded  by  a  person  responsible  for  his  subordinates; 

2.  That  they  have  a  fixed  distinctive  emblem  recognizable  at  a  distance ; 

3.  That  they  carry  arms  openly;  and 


254  CONVENTIONS 

4.  That  they  conduct  their  operations  in  accordance  with  the  laws  and 
customs  of  war.  * 

In  countries  where  miHtia  or  volunteer  corps  constitute  the  army,  or  form 
part  of  it,  they  are  included  under  the  denomination  **  army." 

Article  2 
The  population  of  a  territory  which  has  not  been  occupied  who,  on  the 
approach  of  the  enemy,  spontaneously  take  up  arms  to  resist  the  invading  troops 
without  having  had  time  to  organize  themselves  in  accordance  with  Article  1, 
shall  be  regarded  as  belligerents  if  they  respect  the  laws  and  customs  of  war. 

Article  3  ^ 

The  armed  forces  of  the  belligerent  parties  may  consist  of  combatants  and 
non-combatants.  In  case  of  capture  by  the  enemy,  both  have  a  right  to  be 
treated  as  prisoners  of  war. 

Chapter  II. — Prisoners  of  war 

Article  4 

Prisoners  of  war  are  in  the  power  of  the  hostile  Government,  but  not  in  that 
of  the  individuals  or  corps  who  captured  them. 

They  must  be  humanely  treated. 

All  their  personal  belongings,  except  arms,  horses,  and  military  papers^ 
remain  their  property. 

Article  5 
Prisoners  of  war  may  be  interned  in  a  town,  fortress,  camp,  or  other  place, 
under  obligation  not  to  go  beyond  certain  fixed  limits ;  but  they  can  only  be  placed 
in  confinement  as  an  indispensable  measure  of  safety. 

Article  6 
[22]  The  State  may  utilize  the  labor  of  prisoners  of  war  according  to  their  rank 
and  aptitude.    The  tasks  shall  not  be  excessive  and  shall  have  no  connection 
with  the  operations  of  the  war. 

Prisoners  may  be  authorized  to  work  for  the  public  service,  for  private  per- 
sons, or  on  their  own  account. 

Work  done  for  the  State  is  paid  for  at  the  rates  in  force  for  work  of 
a  similar  kind  done  by  soldiers  of  the  national  army. 

When  the  work  is  for  other  branches  of  the  public  service  or  for  private 
persons,  the  conditions  are  settled  in  agreement  with  the  military  authorities. 

The  wages  of  the  prisoners  shall  go  towards  improving  their  position,  and 
the  balance  shall  be  paid  them  at  the  time  of  their  release,  after  deducting  the 
cost  of  their  maintenance. 

Article  7 

The  Government  into  whose  hands  prisoners  of  war  have  fallen  is  charged 
with  their  maintenance. 

In  the  absence  of  a  special  agreement  between  the  belligerents,  prisoners  of 
war  shall  be  treated  as  regards  food,  quarters,  and  clothing,  on  the  same  footing 
as  the  troops  of  the  Government  which  has  captured  them. 


LAWS  AND  CUSTOMS  OF  WAR  ON  LAND  255 

Article  8 

Prisoners  of  war  shall  be  subject  to  the  laws,  regulations,  and  orders  in 
force  in  the  army  of  the  State  in  whose  power  they  are.  Any  act  of  insubordina- 
tion justifies  the  adoption  towards  them  of  such  measures  of  severity  as  may  be 
necessary. 

Escaped  prisoners  who  are  retaken  before  being  able  to  rejoin  their  army  or 
before  leaving  the  territory  occupied  by  the  army  that  captured  them  are  liable 
to  disciplinary  punishment. 

Prisoners  who,  after  succeeding  in  escaping,  are  again  taken  prisoners,  are 
not  liable  to  any  punishment  for  the  previous  flight. 

Article  9 

Every  prisoner  of  war  is  bound  to  give,  if  questioned  on  the  subject,  his  true 
name  and  rank,  and  if  he  infringes  this  rule,  he  is  liable  to  a  curtailment  of  the 
advantages  accorded  to  the  prisoners  of  war  of  his  class. 

Article  10 

Prisoners  of  war  may  be  set  at  liberty  on  parole  if  the  laws  of  their  country 
allow  it,  and,  in  such  cases,  they  are  bound,  on  their  personal  honor,  scrupulously 
to  fulfil,  both  towards  their  own  Government  and  the  Government  by  which  they 
were  made  prisoners,  the  engagements  they  have  contracted. 

In  such  cases  their  own  Government  is  bound  neither  to  require  of  nor  accept 
from  them  any  service  incompatible  with  the  parole  given. 

Article  11 

A  prisoner  of  war  can  not  be  compelled  to  accept  his  liberty  on  parole; 
similarly  the  hostile  Government  is  not  obliged  to  accede  to  the  request  of  the 
prisoner  to  be  set  at  liberty  on  parole. 

Article  12 

Any  prisoner  of  war  liberated  on  parole  and  retaken  bearing  arms  against 
the  Government  to  which  he  had  pledged  his  honor,  or  against  the  allies  of  that 
Government,  forfeits  his  right  to  be  treated  as  a  prisoner  of  war,  and  can  be 
brought  before  the  courts. 

Article  13 

Individuals  who  follow  an  army  without  directly  belonging  to  it,  such  as 
newspaper  correspondents  and  reporters,  sutlers  and  contractors,  who  fall  into 
the  enemy's  hands,  and  whom  the  latter  thinks  fit  to  detain,  are  entitled  to  be 
treated  as  prisoners  of  war,  provided  they  are  in  possession  of  a  certificate  from 
the  military  authorities  of  the  army  they  were  accompanying. 

Article  14 

[23]  An  information  bureau  relative  to  prisoners  of  war  is  instituted,  on  the 
commencement  of  hostilities,  in  each  of  the  belligerent  States  and,  when 
necessary,  in  neutral  countries  which  have  received  belligerents  in  their  territory. 
The  function  of  this  bureau  is  to  reply  to  all  inquiries  about  the  prisoners,  to 
receive  from  the  various  services  concerned  all  the  information  necessary  to 
enable  it  to  make  out  an  individual  return  for  each  prisoner  of  war.    It  is  kept 


256  CONVENTIONS 

informed  of  kitemments  and  transfers,  as  well  as  of  admissions  into  hospital 
and  deaths. 

It  is  likewise  the  function  of  the  information  bureau  to  receive  and  collect  all 
objects  of  personal  use,  valuables,  letters,  etc.,  found  on  the  field  of  battle  or  left 
by  prisoners  who  have  died  in  hospitals  or  ambulances,  and  to  forward  them  to 
those  concerned. 

Article  15 

Relief  societies  for  prisoners  of  war,  which  are  properly  constituted  in 
accordance  with  the  laws  of  their  country  and  with  the  object  of  serving  as  the 
channel  for  charitable  effort  shall  receive  from  the  belligerents,  for  themselves 
and  their  duly  accredited  agents,  every  facility  for  the  efficient  performance  of 
their  humane  task  within  the  bounds  imposed  by  military  necessities  and  adminis- 
trative regulations.  Agents  of  these  societies  may  be  admitted  to  the  places  of 
internment  for  the  purpose  of  distributing  relief,  as  also  to  the  halting-places  of 
repatriated  prisoners,  if  furnished  with  a  personal  permit  by  the  military  authori- 
ties, and  on  giving  an  undertaking  in  writing  to  comply  with  all  measures  of  order 
and  police  which  the  latter  may  issue. 

Article  16 

Information  bureaus  enjoy  the  privilege  of  free  postage.  Letters,  money 
orders,  and  valuables,  as  well  as  parcels  by  post,  intended  for  prisoners  of  war, 
or  dispatched  by  them,  shall  be  exempt  from  all  postal  duties  in  the  countries  of 
origin  and  destination,  as  well  as  in  the  countries  they  pass  through. 

Presents  and  relief  in  kind  for  prisoners  of  war  shall  be  admitted  free  of  all 
import  or  other  duties,  as  well  as  of  payments  for  carriage  by  State  railways. 

Article  17 

Officers  taken  prisoners  may  receive,  if  necessary,  the  full  pay  allowed  them 
in  this  position  by  their  country's  regulations,  the  amount  to  be  refunded  by  their 
Government. 

Article  18 

Prisoners  of  war  shall  enjoy  complete  liberty  in  the  exercise  of  their  religion, 
including  attendance  at  the  services  of  whatever  church  they  may  belong  to,  on 
the  sole  condition  that  they  comply  with  the  measures  of  order  and  police  issued 
by  the  military  authorities. 

Article  19 

The  wills  of  prisoners  of  war  are  received  or  drawn  up  in  the  same  way  as 
for  soldiers  of  the  national  army. 

The  same  rules  shall  be  observed  regarding  death  certificates  as  well  as  for 
the  burial  of  prisoners  of  war,  due  regard  being  paid  to  their  grade  and  rank. 

Article  20 

After  the  conclusion  of  peace,  the  repatriation  of  prisoners  of  war  shall  be 
carried  out  as  quickly  as  possible. 


LAWS  AND  CUSTOMS  OF  WAR  ON  LAND  257 

Chapter  III. — The  sick  and  wounded 
Article  21 

The  obligations  of  belligerents  with  regard  to  the  sick  and  wounded  are 
governed  by  the  Geneva  Convention  of  August  22,  1864,  subject  to  any  modifica- 
tions which  may  be  introduced  into  it. 

[24]  SECTION  II.— On  Hostilities 

Chapter  I. — Means  of  injuring  the  enemy,  sieges,  and  bombardments 

Article  22 

The  right  of  belligerents  to  adopt  means  of  injuring  the  enemy  is  not 
unlimited. 

Article  23 

In  addition  to  the  prohibitions  provided  by  special  conventions,  it  is  especially 
forbidden : 

(a)  To  employ  poison  or  poisoned  weapons ; 

(b)  To  kill  or  wound  treacherously  individuals  belonging  to  the  hostile 
nation  or  army ; 

(c)  To  kill  or  wound  an  enemy  who,  having  laid  down  his  arms,  or  having 
no  longer  means  of  defense,  has  surrendered  at  discretion; 

(d)  To  declare  that  no  quarter  will  be  given; 

(e)  To  employ  arms,  projectiles,  or  material  calculated  to  cause  unnecessary 
suffering ; 

(/)  To  make  improper  use  of  a  flag  of  truce,  of  the  national  flag,  or  of  the 
military  insignia  and  uniform  of  the  enemy,  as  well  as  the  distinctive  badges  of 
the  Geneva  Convention; 

(^f)  To  destroy  or  seize  the  enemy's  property,  unless  such  destruction  or 
seizure  be  imperatively  demanded  by  the  necessities  of  war. 

Article  24 

Ruses  of  war  and  the  employment  of  measures  necessary  for  obtaining 
information  about  the  enemy  and  the  country  are  considered  permissible. 

Article  25 

It  is  forbidden  to  attack  or  bombard  towns,  villages,  dwellings  or  buildings 
that  are  not  defended. 

Article  26 

The  officer  in  command  of  an  attacking  force  must,  before  commencing  a 
bombardment,  except  in  cases  of  assault,  do  all  in  his  power  to  warn  the 
authorities. 

Article  27 

In  sieges  and  bombardments  all  necessary  steps  must  be  taken  to  spare,  as 
far  as  possible,  buildings  dedicated  to  religion,  art,  science,  or  charitable  purposes, 
hospitals,  and  places  where  the  sick  and  wounded  are  collected,  provided  they 
are  not  being  used  at  the  time  for  military  purposes. 


258  -^         CONVENTIONS 

It  is  the  duty  of  the  besieged  to  indicate  the  presence  of  such  buildings  or 
places  by  distinctive  and  visible  signs,  which  shall  be  notified  to  the  enemy 
beforehand. 

Article  28 
It  is  forbidden  to  give  over  to  pillage  even  a  town  or  place  taken  by  storm. 

Chapter  II. — Spies 

Article  29 

A  person  can  only  be  considered  a  spy  when,  acting  clandestinely  or  on  false 
pretences,  he  obtains  or  endeavors  to  obtain  information  in  the  zone  of  operations 
of  a  belligerent,  with  the  intention  of  communicating  it  to  the  hostile  party. 

Thus,  soldiers  not  wearing  a  disguise  who  have  penetrated  into  the  zone  of 
operations  of  the  hostile  army,  for  the  purpose  of  obtaining  information,  are  not 
considered  spies.  Similarly,  the  following  are  not  considered  spies :  Soldiers  and 
civilians,  carrying  out  their  mission  openly,  entrusted  with  the  delivery  of  dis- 
patches intended  either  for  their  own  army  or  for  the  enemy's  army,  To  this 
class  belong  likewise  persons  sent  in  balloons  for  the  purpose  of  carrying 
dispatches  and,  generally,  of  maintaining  communications  between  the  different 
parts  of  an  army  or  a  territory. 

Article  30 
[25]  A  spy  taken  in  the  act  shall  not  be  punished  without  previous  trial. 

Article  31 

A  spy  who,  after  rejoining  the  army  to  which  he  belongs,  is  subsequently 
captured  by  the  enemy,  is  treated  as  a  prisoner  of  war,  and  incurs  no  responsi- 
bility for  his  previous  acts  of  espionage. 

Chapter  III. — Parlementaires 

Article  32 

A  person  is  regarded  as  a  parlementaire  who  has  been  authorized  by  one  of 
the  belligerents  to  enter  into  communication  with  the  other,  and  who  advances 
bearing  a  white  flag.  He  has  a  right  to  inviolability,  as  well  as  the  trumpeter, 
bugler  or  drummer,  the  flag-bearer  and  the  interpreter  who  may  accompany  him. 

Article  33 

The  commander  to  whom  a  parlementaire  is  sent  is  not  in  all  cases  obliged 
to  receive  him. 

He  may  take  all  necessary  steps  in  order  to  prevent  the  parlementaire 
taking  advantage  of  his  mission  to  obtain  information. 

In  case  of  abuse,  he  has  the  right  to  detain  the  parlementaire  temporarily. 

Article  34 

The  parlementaire  loses  his  rights  of  inviolability  if  it  is  proved  in  a  clear  and 
incontestable  manner  that  he  has  taken  advantage  of  his  privileged  position  to 
provoke  or  commit  an  act  of  treason. 


LAWS  AND  CUSTOMS  OF  WAR  ON  LAND  259 

Chapter  IV. — Capitulations 

Article  35 

Capitulations  agreed  upon  between  the  contracting  parties  must  take  into 
account  the  rules  of  military  honor. 

Once  settled,  they  must  be  scrupulously  observed  by  both  parties. 

Chapter  V. — Armistices 

Article  36 
An  armistice  suspends  military  operations  by  mutual  agreement  between  the 
belligerent  parties.     If  its  duration  is  not  defined,  the  belligerent  parties  may 
resume  operations  at  any  time,  provided  always  that  the  enemy  is  warned  within 
the  time  agreed  upon,  in  accordance  with  the  terms  of  the  armistice. 

Article  37 
An  armistice  may  be  general  or  local.    The  first  suspends  the  military  opera- 
tions of  the  belligerent   States   everywhere;  the  second   only  between  certain 
fractions  of  the  belligerent  armies  and  within  a  fixed  radius. 

Article  38 
An  armistice  must  be  notified  officially  and  in  good  time  to  the  competent 
authorities  and  to  the  troops.     Hostilities  are  suspended  immediately  after  the 
notification,  or  on  the  date  fixed. 

Article  39 
It  rests  with  the  contracting  parties  to  settle,  in  the  terms  of  the  armistice, 
what  communications  may  be  held  in  the  theatre  of  war  with  the  populations  and 
between  them. 

Article  40 
Any  serious  violation  of  the  armistice  by  one  of  the  parties  gives  the  other 
party  the  right  of  denouncing  it,  and  even,  in  cases  of  urgency,  of  recommencing 
hostilities  immediately. 

Article  41 
[26]  A  violation  of  the  terms  of  the  armistice  by  private  persons  acting  on  their 
own  initiative  only  entitles  the  injured  party  to  demand  the  punishment  of 
the  offenders  and,  if  necessary,  compensation  for  the  losses  sustained. 

SECTION  III. — On  Military  Authority  over  the  Territory  of  the 

Hostile  State 

Article  42 

Territory  is  considered  occupied  when  it  is  actually  placed  under  the  author- 
ity of  the  hostile  army. 

The  occupation  extends  only  to  the  territory  where  such  authority  has  been 
established  and  can  be  exercised. 


260  CONVENTIONS 

Article  43  — 

The  authority  of  the  legitimate  power  having  in  fact  passed  into  the  hands  of 
the  occupant,  the  latter  shall  take  ail  the  measures  in  his  power  to  restore  and 
ensure,  as  far  as  possible,  public  order  and  safety,  while  respecting,  unless  abso- 
lutely prevented,  the  laws  in  force  in  the  country. 

Article  44 
It  is  forbidden  to  force  the  population  of  occupied  territory  to  take  part  in 
military  operations  against  its  own  country. 

Article  45 
It  is  forbidden  to  compel  the  population  of  occupied  territory  to  swear 
allegiance  to  the  hostile  Power. 

Article  46 
Family  honor  and  rights,  the  lives  of  persons,  and  private  property,  as  well 
as  religious  convictions  and  practice,  must  be  respected. 
Private  property  can  not  be  confiscated. 

Article  47 
Pillage  is  formally  forbidden. 

Article  48 
If,  in  the  territory  occupied,  the  occupant  collects  the  taxes,  dues,  and  tolls 
imposed  for  the  benefit  of  the  State,  he  shall  do  so,  as  far  as  is  possible,  in 
accordance  with  the  rules  of  assessment  and  incidence  in  force,  and  shall  in 
consequence  be  bound  to  defray  the  expenses  of  the  administration  of  the  occupied 
territory  to  the  same  extent  as  the  legitimate  Government  was  so  bound. 

Article  49 
If,  in  addition  to  the  taxes  mentioned  in  the  above  article,  the  occupant  levies 
other  money  contributions  in  the  occupied  territory,  this  shall  only  be  for  the 
needs  of  the  army  or  of  the  administration  of  the  territory  in  question. 

Article  50 
No   general  penalty,  pecuniary   or  otherwise,   shall   be   inflicted   upon  the 
population  on  account  of  the  acts  of  individuals  for  which  they  can  not  be 
regarded  as  jointly  and  severally  responsible. 

Article  51 

No  contribution  shall  be  collected  except  under  a  written  order,  and  on  the 
responsibility  of  a  commander  in  chief. 

The  collection  of  the  said  contribution  shall  only  be  eflfected  as  far  as  possible 
in  accordance  with  the  rules  of  assessment  and  incidence  of  the  taxes  in  force. 

For  every  contribution  a  receipt  shall  be  given  to  the  contributors. 

Article  52 
Requisitions  in  kind  and  services  shall  not  be  demanded  from  municipalities 
or  inhabitants  except  for  the  needs  of  the  army  of  occupation.    They  shall  be  in 


LAWS  AND  CUSTOMS  OF  WAR  ON  LAND  261 

proportion  to  the  resources  of  the  country,  and  of  such  a  nature  as  not  to 
[27]   involve  the  population  in  the  obligation  of  taking  part  in  the  operations  of 
the  war  against  their  country. 

Such  requisitions  and  services  shall  only  be  demanded  on  the  authority  of 
the  commander  in  the  locality  occupied. 

Contributions  in  kind  shall,  as  far  as  possible,  be  paid  for  in  cash ;  if  not,  a 
receipt  shall  be  given. 

Article  53 

An  army  of  occupation  can  only  take  possession  of  cash,  funds,  and  realiza- 
ble securities  which  are  strictly  the  property  of  the  State,  depots  of  arms,  means 
of  transport,  stores  and  supplies,  and,  generally,  all  movable  property  belonging 
to  the  State  which  may  be  used  for  the  operations  of  the  war. 

Railway  plant,  land  telegraphs,  telephones,  steamers  and  other  ships,  apart 
from  cases  governed  by  maritime  law,  as  well  as  depots  of  arms  and  generally 
all  kinds  of  munitions  of  war,  even  though  belonging  to  companies  or  to  private 
persons,  are  likewise  material  which  may  serve  for  military  operations,  but  they 
must  be  restored  and  compensation  fixed  when  peace  is  made. 

Article  54 

The  plant  of  railways  coming  from  neutral  States,  whether  the  property  of 
those  States  or  of  companies  or  of  private  persons,  shall  be  sent  back  to  them  as 
soon  as  possible. 

Article  55 

The  occupying  State  shall  be  regarded  only  as  administrator  and  usufructuary 
of  public  buildings,  real  estate,  forests,  and  agricultural  estates  belonging  to  the 
hostile  State,  and  situated  in  the  occupied  country.  It  must  safeguard  the  capital 
of  these  properties,  and  administer  them  in  accordance  with  the  rules  of  usufruct. 

Article  56  ^ 

The  property  of  municipalities,  that  of  institutions  dedicated  to  religion, 
charity  and  education,  the  arts  and  sciences,  even  when  State  property,  shall  be 
treated  as  private  property. 

All  seizure  or  destruction  of,  or  wilful  damage  to,  institutions  of  this  char- 
acter, historic  monuments,  works  of  art  and  science,  is  forbidden,  and  should  be 
made  the  subject  of  legal  proceedings. 

SECTION  IV. — On  the  Internment  of  Belligerents  and  the  Care  of  the 
Wounded  in  Neutral  Countries 

Article  57 

A  neutral  State  which  receives  on  its  territory  troops  belonging  to  the 
belligerent  armies  shall  intern  them,  as  far  as  possible,  at  a  distance  from  the 
theatre  of  war. 

It  may  keep  them  in  camps,  and  even  confine  them  in  fortresses  or  in  places 
set  apart  for  this  purpose. 

It  shall  decide  whether  officers  can  be  left  at  liberty  on  giving  their  parole 
not  to  leave  the  neutral  territory  without  permission. 


262  DECLARATIONS 

Article  58 

In  the  absence  of  a  special  convention,  the  neutral  State  shall  supply  the 
interned  with  the  food,  clothing,  and  relief  required  by  humanity. 

At  the  conclusion  of  peace  the  expenses  caused  by  the  internment  shall  be 
made  good. 

Article  59 

A  neutral  State  may  authorize  the  passage  over  its  territory  of  wounded  or 
sick  belonging  to  the  belligerent  armies,  on  condition  that  the  trains  bringing 
them  shall  carry  neither  personnel  nor  material  of  war.  In  such  a  case,  the 
neutral  State  is  bound  to  take  whatever  measures  of  safety  and  control  are  neces- 
sary for  the  purpose. 
[28]  Wounded  or  sick  brought  under  these  conditions  into  neutral  territory  by 
one  of  the  belligerents,  and  belonging  to  the  hostile  party,  must  be  guarded 
by  the  neutral  State,  so  as  to  ensure  their  not  taking  part  again  in  the  operations 
of  the  war.  The  same  duty  shall  devolve  on  the  neutral  State  with  regard  to 
wounded  or  sick  of  the  other  army  who  may  be  committed  to  its  care. 

Article  60 

The  Geneva  Convention  applies  to  sick  and  wounded  interned  in  neutral 
territory. 


DECLARATION 

The  undersigned,  plenipotentiaries  of  the  Powers  represented  at  the  Inter- 
national Peace  Conference  at  The  Hague,  duly  authorized  to  that  effect  by  their 
Governments, 

Inspired  by  the  sentiments  which  found  expression  in  the  Declaration  of 
St.  Petersburg  of  November  29/December  11,  1868, 

Declare  that : 

The  contracting  Parties  agree  to  abstain  from  the  use  of  bullets  which  expand 
or  flatten  easily  in  the  human  body,  such  as  bullets  with  a  hard  envelope  which 
does  not  entirely  cover  the  core  or  is  pierced  with  incisions. 

The  present  Declaration  is  only  binding  on  the  contracting  Powers  in  the 
case  of  a  war  between  two  or  more  of  them. 

It  shall  cease  to  be  binding  from  the  time  when,  in  a  war  between  the  con- 
tracting Powers,  one  of  the  belligerents  is  joined  by  a  non-contracting  Power. 

The  present  Declaration  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  proces-verbal  shall  be  drawn  up  on  the  receipt  of  each  ratification,  a  copy 
of  which,  duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  all  the 
contracting  Powers. 

Non-signatory  Powers  may  adhere  to  the  present  Declaration.  For  this 
purpose  they  must  make  their  adhesion  known  to  the  contracting  Powers  by 
means  of  a  written  notification  addressed  to  the  Netherland  Government,  and  by 
it  communicated  to  all  the  other  contracting  Powers. 

In  the  event  of  one  of  the  high  contracting  Parties  denouncing  the  present 
Declaration,  such  denunciation  shall  not  take  effect  until  a  year  after  the  notifi- 


EXPANDING  BULLETS 


263 


cation  made  in  writing  to  the  Netherland  Government,  and  by  it  forthwith  com- 
municated to  all  the  other  contracting  Powers. 

This  denunciation  shall  have  effect  only  in  regard  to  the  notifying  Power. 

In  faith  of  which  the  plenipotentiaries  have  signed  the  present  Declaration, 
and  have  affixed  their  seals  thereto. 

Done  at  The  Hague,  July  29,  1899,  in  a  single  original,  which  shall  remain 
deposited  in  the  archives  of  the  Netherland  Government,  and  copies  of  which, 
duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  the  contracting 
Powers. 


For  Germany: 

For  Austria-Hungary: 

For  Belgium: 


For  China:  ' 
For  Denmark: 
For  Spain: 


[29]  For  the  United  States  of  America: 
For  the  United  Mexican  States: 

For  France: 


For  Great  Britain  and  Ireland: 

For  Greece: 

For  Italy: 

For  Japan: 

For  Luxemburg: 

For  Montenegro: 

For  the  Netherlands: 


For  Persia: 

For  Portugal: 
For  Roumania: 

For  Russia: 


For  Serbia: 
For  Siam: 

For  Sweden  and  Norway: 


(Signed)  A.  Beernaert. 
(Signed)  Cte.  de  Grelle  Rogier. 
(Signed)  Chr.  Descamps. 

(Signed)  F.  Bille. 
(Signed)  El  Duque  de  Tetuan. 
(Signed)  W.  R.  de  Villa  Urrutia. 
(Signed)  Arturo  de  Baguer. 

(Signed)  A.  de  Mier. 
(Signed)  J.  Zenil. 
(Signed)  Leon  Bourgeois. 
(Signed)  G.  Bihourd. 
(Signed)  d'Estournelles  de 
Constant. 

(Signed)  N.  Delyanni. 


(Signed)  Staal. 

(Signed)  v.  Karnebeek. 

(Signed)  den  Beer  Poortugael. 

(Signed)  T.  M.  C.  Asser. 

(Signed)  E.  N.  Rahusen. 

(Signed)  Mirza  Riza  Khan,  Arfa- 

UD-DOVLEH. 

(Signed)  A.  Beldiman. 

(Signed)  J.  N.  Papiniu. 

(Signed)  Staal. 

(Signed)  Martens. 

(Signed)  A.  Basily. 

(Signed)   Phya  Suriya  Nuvatr. 
(Signed)  Visuddha. 
(Signed)  Bildt. 


264  DECLARATIONS 

For  Switzerland:  

For  Turkey:  (Signed)  Turkhan. 

(Signed)  M.  Noury. 

(Signed)  Abdullah. 

(Signed)  R.  Mehemed, 

For  Bulgaria:  (Signed)  D.  Stancioff. 

(Signed)  Major  Hessaptchieff. 


DECLARATION 

The  undersigned,  plenipotentiaries  of  the  Powers  represented  at  the  Inter- 
national Peace  Conference  at  The  Hague,  duly  authorized  to  that  effect  by  their 
Governments,  inspired  by  the  sentiments  which  found  expression  in  the  Declara- 
tion of  St.  Petersburg  of  November  29/December  11,  1868, 

Declare  that: 

The  contracting  Powers  agree,  for  a  term  of  five  years,  to  forbid  the  dis- 
charge of  projectiles  and  explosives  from  balloons  or  by  other  new  methods  of 
similar  nature. 

The  present  Declaration  is  only  binding  on  the  contracting  Powers  in  case 
of  war  between  two  or  more  of  them. 

It  shall  cease  to  be  binding  from  the  time  when,  in  a  war  between  the  con- 
tracting Powers,  one  of  the  belligerents  is  joined  by  a  non-contracting  Power. 

The  present  Declaration  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  proces-verhal  shall  be  drawn  up  on  the  receipt  of  each  ratification,  a  copy 
of  which,  duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  all  the 

contracting  Powers. 
[30]   Non-signatory  Powers  may  adhere  to  the  present  Declaration.     For  this 
purpose  they  must  make  their  adhesion  known  to  the  contracting  Powers 
by  means  of  a  written  notification  addressed  to  the  Netherland  Government, 
and  by  it  communicated  to  all  the  other  contracting  Powers. 

In  the  event  of  one  of  the  high  contracting  Parties  denouncing  the  present 
Declaration,  such  denunciation  shall  not  take  effect  until  a  year  after  the  notifi- 
cation made  in  writing  to  the  Netherland  Government,  and  by  it  forthwith  com- 
municated to  all  the  other  contracting  Powers. 

This  denunciation  shall  have  effect  only  in  regard  to  the  notifying  Power. 

In  faith  of  which  the  plenipotentiaries  have  signed  the  present  Declaration, 
and  have  affixed  their  seals  thereto. 

Done  at  The  Hague,  July  29,  1899,  in  a  single  original,  which  shall  remain 
deposited  in  the  archives  of  the  Netherland  Government,  and  copies  of  which, 
duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  the  contracting 
Powers. 

For  Germany:  

For  Austria-Hungary:  

For  Belgium:  (Signed)  A.  Beernaert. 

(Signed)  Cte.  de  Grelle  Rogier. 
(Signed)  Chr.  Descamps. 


DISCHARGE  OF  PROJECTILES  FROM  BALLOONS 


265 


For  Denmark: 

(Signed) 

F.    BiLLE. 

For  Spain: 

(Signed) 

El  Duque  de  Tetuan. 

(Signed) 

W.  R,  DE  Villa  Urrutia. 

(Signed) 

Arturo  de  Baguer. 

For  the  United  States  of  America: 

(Signed) 

Andrew  D.  White. 

(Signed) 

Seth  Low. 

(Signed) 

Stanford  Newel. 

(Signed) 

A.  T.  Mahan. 

(Signed) 

William  Crozier. 

For  the  United  Mexican  States: 

(Signed) 

A.  DE  Mier. 

(Signed) 

J.  Zenil. 

For  France: 

(Signed) 

Leon  Bourgeois. 

(Signed) 

G.    BiHOURD. 

(Signed) 

d'Estournelles  de 
Constant. 

For  Great  Britain  and  Ireland: 

For  Greece: 

(Signed) 

N.  Delyanni. 

For  Italy: 
For  Japan: 
For  Luxemburg: 
For  Montenegro: 

(Signed) 

Staal. 

For  the  Netherlands: 

(Signed) 

V.  Karnebeek. 

(Signed) 

den  Beer  Poortugael. 

(Signed) 

T.  M.  C.  AssER. 

(Signed) 

E.  N.  Rahusen. 

For  Persia: 

(Signed) 

MiRZA  RizA  Khan,  Arfa- 

UD-DOVLEH. 

For  Portugal: 

(Signed) 

Conde  de  Macedo. 

(Signed) 

Agostinho  d'Ornellas  de 
Vasconcellos. 

(Signed) 

Conde  de  Selir. 

For  Roumania: 

(Signed) 

A.  Beldiman. 

(Signed) 

J.  N.  Papiniu. 

For  Russia: 

(Signed) 

Staal. 

(Signed) 

Martens. 

(Signed) 

A.  Easily. 

For  Siam: 

(Signed) 

Phya  Suriya  Nuvatr. 

(Signed) 

ViSUDDHA. 

For  Sweden  and  Norway: 

(Signed) 

BiLDT. 

For  S7i)itzerland ' 

For  Turkey: 

(Signed) 

TURKHAN. 

(Signed) 

M.    NOURY. 

(Signed) 

Abdullah. 

(Signed) 

R.  Mehemed. 

For  Bulgaria: 

(Signed) 

D.  Stancioff. 

(Signed) 

Major  Hessaptchieff. 

266  DECLARATIONS 

[31] 

DECLARATION 

The  undersigned,  plenipotentiaries  of  the  Powers  represented  at  the  Inter- 
national Peace  Conference  at  The  Hague,  duly  authorized  to  that  effect  by  their 
.Governments, 

Inspired  by  the  sentiments  which  found  expression  in  the  Declaration  of 
St.  Petersburg  of  November  29/December  11,  1868. 

Declare  that: 

The  contracting  Powers  agree  to  abstain  from  the  use  of  projectiles  the  sole 
object  of  which  is  the  diffusion  of  asphyxiating  or  deleterious  gases. 

The  present  Declaration  is  only  binding  on  the  contracting  Powers  in  the 
case  of  a  war  between  two  or  more  of  them. 

It  shall  cease  to  be  binding  from  the  time  when,  in  a  war  between  the 
contracting  Powers,  one  of  the  belligerents  shall  be  joined  by  a  non-contracting 
Power. 

The  present  Declaration  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

A  proces-verhal  shall  be  drawn  up  on  the  receipt  of  each  ratification,  a  copy 
of  which,  duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  all  the 
contracting  Powers. 

Non-signatory  Powers  may  adhere  to  the  present  Declaration.  For  this 
purpose  they  must  make  their  adhesion  known  to  the  contracting  Powers  by 
means  of  a  written  notification  addressed  to  the  Netherland  Government,  and  by 
it  communicated  to  all  the  other  contracting  Powers. 

In  the  event  of  one  of  the  high  contracting  Parties  denouncing  the  present 
Declaration,  such  denunciation  shall  not  take  effect  until  a  year  after  the  notifi- 
cation made  in  writing  to  the  Netherland  Government,  and  by  it  forthwith  com- 
municated to  all  the  other  contracting  Powers. 

This  denunciation  shall  have  effect  only  in  regard  to  the  notifying  Power. 

In  faith  of  which  the  plenipotentiaries  have  signed  the  present  Declaration, 
and  have  affixed  their  seals  thereto. 

Done  at  The  Hague,  July  29,  1899,  in  a  single  original,  which  shall  remain 
deposited  in  the  archives  of  the  Netherland  Government,  and  copies  of  which, 
duly  certified,  shall  be  sent  through  the  diplomatic  channel  to  the  contracting 
Powers. 

For  Germany:  

For  Austria-Hungary:  

For  Belgium:  (Signed)  A.  Beernaert. 

(Signed)  Cte.  de  Grelle  Rogier. 

(Signed)  Chr.  Descamps. 

For  China:  

For  Denmark:  (Signed)  F.  Bille. 

For  Spain:  (Signed)  El  Duque  de  Tetuan. 

(Signed)  W.  R.  de  Villa  Urrutia. 

(Signed)  Arturo  de  Baguer. 
For  the  United  States  of  America:      


ASPHYXIATING  GASES  267 

For  the  United  Mexican  States:  (Signed)  A.  de  Mier. 

(Signed)  J.  Zenil. 
For  France:  (Signed)  Leon  Bourgeois. 

(Signed)  G.  Bihourd. 

(Signed)  d'Estournelles  de 
Constant. 

For  Great  Britain  and  Ireland:  

For  Greece:  (Signed)  N.  Delyanni. 

For  Italy:  

For  Japan:  

[32]  For  Luxemburg:  

For  Montenegro:  (Signed)  Staal.        — — 

For  the  Netherlands:  (Signed)  v.  KarnebeekT 

(Signed)  den  Beer  Poortugael. 

(Signed)  T.  M.  C.  Asser. 

(Signed)  E,  N.  Rahusen. 
For  Persia:  (Signed)  Mirza   Riza  Khan,  Arfa- 

ud-Dovleh. 
For  Portugal:  (Signed)  Conde  de  Macedo. 

(Signed)  Agostinho   d'Ornellas   de 
Vasconcellos, 

(Signed)  Conde  de  Selir. 
For  Roumania:  (Signed)  A.  Beldiman. 

(Signed)  J.  N.  Papiniu. 
For  Russia:  (Signed)  Staal. 

(Signed)  Martens. 

(Signed)  A.  Basily. 

For  Serbia:  

For  Siam:  (Signed)  Phya  Suriya  Nuvatr. 

(Signed)  Visuddha. 
For  Sweden  and  Norway:  (Signed)  Bildt. 

For  Switzerland: 

For  Turkey:  (Signed)  Turkhan. 

(Signed)  M.  Noury. 

(Signed)  R.  Mehemed. 

(Signed)  Abdullah. 
For  Bulgaria:  (Signed)  D.  Stancioff. 

(Signed)  Major  Hessaptchieff. 


INTERNATIONAL  PEACE  CONFERENCE 


Table  of  Signatxjres 

affixed  up  to  december  31.  1899,  to  the 
Declarations  of  July  29,  1899 

CONVENTIOI 

IS   AND 

[S=8ignedJ 

I 

Convention 
for  the  pa- 
cific   settle- 
ment of  in- 
ternational 
disputes 

II 

Convention 
respecting 
the     laws 
and    cus- 
toms    of 
tear  on 
land 

in 

Convention 

for  the 
adaptation 
to  maritime 
warfare    of 
the    princi- 
ples of  the 

Geneva 

Convention 

of  April  22, 

1864 

IV    (1) 

Declaration 
prohibiting 

the   dis- 
charge    0  f 
projectiles 
from    b  al- 
loons  or  by 
other     new 
methods    of 
similar 
nature 

IV    (2) 

Declaration 
prohibiting 
the  employ- 
ment   of 
projectiles 
containing 
asphyxiat- 
ing or  de- 
leterious 
gases 

IV    (3) 

Declaration 
prohibiting 

the    em- 
ployment of 

bullets 
which      ex- 
pand    or 
flatten   eas- 
ily   in    the 

human 
body,  etc. 

Germany 

S 
S 
S 
S 
S 
S 

S' 
S 

s 

s 

s 

s 

s 

s 

s 

s 

s 

s 

s* 

s 

s* 

s 

s 

s 

S" 

s 

S 

S 
S 

S 
S 

S 

S 
S 

s 
s 
s 
s 
s 
s 
s 
s 
s 
s 
s 
s 
s 

s 

s 

s 

S 
S 
S 
S 
S 

S 
S 

S 

s 
s 
s 
s 
s 
s 
s 
s 
s 
s 
s 

s 
s 

s 
s 
s 
s 
s 
s 

s 

- 

s 
s 

s 
s 
s 
s 
s 
s 
s 
s 
s 
s 
s 
s 

s 
s 
s 
s 

s 
s 
s 
s 
s 
s 

s 

s 

s 
s 
s 
s 
s 
s 
s 
s 
s 
s 
s 
s 

s 
s 
s 

s 

S 

Austria-Hungary 

Belgium 

s 
s 

China 

s 

Denmark 

s 

Spain 

s 

United  States 

of  America 

United  Mexican 

States 

s 

France 

s 

Great  Britain 

Greece 

s 

Italy 

s 

Tanan 

s 

Luxemburg 

s 

Montenegro 

s 

Netherlands 

s 

Persia 

s 

Portugal 

Roumania 

s 

Russia 

s 

Serbia 

Siam 

s 
s 

United  Kingdoms 
of  Sweden  and 
Norway 

s 

Switzerland 

Turkey 

s 
s 

Bulgaria 

s 

'  Under  reservation  of  Article  10. 
'  Under  reservation  of  declaration  made  in  plenary  session  of  Conference,  July  25, 
1899.     (Pt.  i,  ante,  p.  99.) 

'Under  the  reservations  formulated  in  Articles  16,  17  and  18  of  the  present  Convention 


1899.     (Pt.  iv,  post,  p.  650.) 

•  Under  reservation  of  the  declaration  made  in  the  plenary  session  of  the  Conference, 
July  25,  1899.    (Pt.  i,  ante,  p.  100.) 


PART  II 
FIRST   COMMISSION 


^^^  FIRST  MEETING 

MAY  23,  1899 


His  Excellency  Mr.  Bcemaert  presiding. 

The  President  thanks  the  Commission  for  the  honor  it  has  done  him  by 
choosing  him  as  its  presiding  officer.  It  is  in  order,  says  he,  to  proceed  at  once  to 
the  organization  of  the  work  of  the  Commission  and  he  proposes,  in  consequence, 
its  subdivision  into  two  subcommissions,  one  to  be  military,  the  other  naval. 

This  proposal  having  been  accepted,  he  invites  the  members  of  the  Com- 
mission to  indicate  to  what  subcommission  they  desire  to  belong. 

He  announces  that  the  First  Commission  will  meet  Friday  mornings  in  plen- 
ary meetings  in  the  large  hall  of  the  Conference ;  from  there,  after  having  exam- 
ined, if  necessary,  the  questions  of  a  general  nature,  they  will  divide  between 
the  two  subcommissions  the  examination  of  the  technical  questions. 

Mr.  Bihourd  asks  whether  certain  delegates  may  be  enrolled  in  the  two 
subcommissions. 

Mr.  Raffalovich  puts  the  same  question. 

It  is  decided  that  there  shall  be  "  military  "  members,  "  naval "  members, 
and  delegates  who,  not  having  special  knowledge,  may  belong  to  either  com- 
mission. 

The  President  announces  that  the  manner  of  reporting  and  communicating 
the  proceedings  of  the  Commission  will  be  settled  in  the  next  meeting. 

Mr.  Rolin  remarks  that  the  substance  of  certain  articles  of  the  program  is 
within  the  competence  either  of  the  military  subcommission  or  of  the  naval 
subcommission.  There  is  not,  therefore,  according  to  him,  need  of  making  the 
proposed  subdivision. 

The  President  answers  that  the  question  of  principle  will  be  discussed  in 
plenary  session. 

Mr.  Raffalovich,  on  the  invitation  of  the  President,  states  what  he  under- 
stands to  be  the  duties  of  the  secretariat  in  the  commissions.  There  would 
eventually  be  need  of  having  recourse  to  the  kindness  of  some  supplementary 
secretaries. 

The  meeting  adjourns. 


271 


SECOND  MEETING 

MAY  26,  1899 


His  Excellency  Mr.  Beernaert  presiding. 

His  Excellency  Mr.  Beernaert  takes  the  chair  and  makes  the  following 
speech : 

Among  the  tasks  of  high  importance  which  lie  before  the  Conference,  our 
First  Commission  has  perhaps  the  most  sacred. 

We  have  especially  to  study,  to  discuss,  to  realize  the  master  ideal  which 
has  created  this  great  international  assembly:  that  of  assuring  to  the  peoples  a 
durable  peace  and  of  seeing  a  barrier  placed  to  the  progressive  and  ruinous  devel- 
opment of  military  armaments. 

Such  is  the  principal  object  of  the  message,  henceforth  famous,  of  August 
[2]   12/24,  1898;  public  opinion  is  not  deceived  in  it  and  has  already  said  it  has 

been  as  by  instinct  that  the  Conference  has  been  christened  with  its  beautiful 
name  of  "  Peace  Conference  "  which  it  has  itself  since  consecrated. 

The  august  initative  of  Emperor  Nicholas  II  was  not  a  new  act  on  the  part 
•of  Russia. 

Since  the  beginning  of  the  century,  the  sovereigns  of  that  vast  empire  have 
always  busied  themselves  with  bringing  about  an  advance  in  this  matter  of  the 
ideas  of  humanity. 

When  the  first  time,  in  1816,  the  Congress  of  Vienna  proposed,  as  to-day, 
to  regulate  the  disarmament  of  Europe  by  the  conventional  determination  of  the 
normal  effective  force  of  the  troops  of  each  Power  on  a  peace  footing,  the  Russian 
<jOvernment  warmly  espoused  that  proposal. 

It  was  the  object  of  the  celebrated  letter  of  Alexander  I  to  Lord  Castle- 

HEAGH. 

In  1868,  an  international  military  commission  met  at  St.  Petersburg  and 
decreed  the  absolute  prohibition  of  the  use  of  certain  explosives.  For  the  first 
time,  there  were  seen  proclaimed  solemnly,  in  a  public  act,  these  ideas  which 
to-day  seem  quite  natural,  that  civilized  States  are  in  duty  bound  to  diminish 
as  much  as  possible  the  calamities  of  war  and  that  in  more  than  one  case  the 
needs  of  humanity  should  be  supreme  over  all  others. 

In  1874,  it  was  by  reason  of  sentiments  no  less  noble  and  elevated,  that 
Emperor  Alexander  II  took  the  initiative  of  the  Brussels  Conference. 

It  was  desired  at  that  time  also  to  suppress  all  needless  cruelties  and  with  that 
;aim  it  was  proposed  to  define  the  laws  and  customs  of  war. 

But  how  much  greater  is  the  present  initiative !  I  know  that  the  difficulties 
to  be  surmounted  are  considerable,  but  whatever  they  be,  the  meeting  of  this 
<ronference  will  remain  in  itself  a  stupendous  fact. 

In  the  history  of  the  world,  it  will  be  the  first  time,  I  think,  that  representa- 

272 


SECOND  MEETING,  MAY  26,  1899  273 

tives  of  almost  every  civilized  country  are  seen  to  meet  peacefully,  without  a 
dispute  to  settle,  without  complaints  to  be  redressed,  without  any  thought  of 
personal  advantage,  and  this  in  the  two- fold  and  liberal  purpose  of  perpetuating; 
harmony  and  softening  the  evils  of  war,  or  of  regulating  it  for  the  day  when  it 
cannot  be  avoided. 

And  with  Emperor  Nicholas  II  himself,  these  are  no  new  aspirations. 

Some  years  ago  he  made  a  present  of  a  bell  to  I  know  not  what  town  of 
France,  Chateaudun,  I  think,  and  on  the  bronze  he  had  engraved  these  words: 
"  May  it  never  ring  other  than  the  hour  of  concord  and  of  peace  1 " 

May  this  beautiful  device,  gentlemen,  inspire  our  labors. 

We  have  to  pursue  together  the  realization  of  an  ideal  which  for  centuries 
has  occupied  the  minds  of  thinkers  and  of  statesmen,  and  whatever  happens,  I 
shall  hold  it  the  honor  of  my  life  that  I  have  been  called  to  make  my  contribution. 
Such  is,  I  am  sure,  also  the  opinion  of  you  all. 

The  President  thinks  it  suitable  first  to  settle  the  manner  of  reporting  the 
proceedings  and  the  publicity  that  will  be  given  them. 

He  states  the  decisions  taken  in  this  respect  by  the  Second  Commission  and 
proposes  to  adopt  them. 

The  secretariat  could  take  down  the  minutes  and  they  would  be  read  at  the 
following  meeting  and  each  member  could  take  note  of  them.  Besides  a  succinct 
statement  of  the  proceedings  would  be  printed  and  distributed  to  the  delegates 
who  are  members  of  the  First  Commission. 

This  proposal  is  accepted. 

The  President  proposes  next  to  settle  the  order  of  the  deliberations  and 
the  part  to  be  assigned  to  the  plenary  meetings  and  to  the  subcommissions. 

The  four  propositions  of  the  circular  of  December  30,  1898,  which  are  within 
the  jurisdiction  of  the  First  Commission  raise  several  questions,  some  of  principle,, 
others  of  application. 

There  is  first  the  main  question :  that  of  the  possibility  of  an  understandings 
on  a  conventional  limitation  of  armed  forces  on  land  and  on  sea  or  of  budgets 
relative  thereto — whether  the  present  figures  be  taken,  whether  it  be  agreed  even 
to  reduce  them,  or,  lastly,  whether  there  be  fixed  by  contract  some  other  limits, 
not  to  be  passed. 

Another  question  of  principle  is  found  in  propositions  2,  3,  and  4 :  Should 
there  be  forbidden  by  conventions  every  new  progress  in  the  manufacture  of 
engines  of  war  by  land  or  by  sea,  arms,  powders,  explosives?  Even  though 
invention  may  be  able  to  proceed  no  further,  should  cannon,  guns  and  explosives, 
remain  what  they  are  to-day?  And  without  doubt,  although  the  circular  does, 
not  say  so,  it  is  in  the  thought  of  the  Russian  Government  that  for  the  firearms 
of  the  present  day  there  could  not  be  substituted  other  engines  of  destruction 
due  to  some  new  idea  and  which  for  instance  might  borrow  their  force  from 

electricity. 
[3]  Of  these  two  discussions  of  principle,  the  first  evidently  ought  to  take  place 

in  a  plenary  meeting,  and  we  shall  have  soon  to  decide  where  the  second 
should  take  place.  Then  come  more  special  questions  whose  moving  principle 
is  exclusively  contained  in  the  desire  of  restricting  and  softening  the  evils  of 
war,  according  to  the  formula  already  consented  to  in  1868  at  St.  Petersburg. 
From  this  entirely  humanitarian  point  of  view,  should  the  use  of  new  explosives 
and  more  powerful  powders  be  prohibited? 


274  FIRST  COMMISSION 

Should  the  use  of  those  at  present  employed  be  restricted? 

Should  there  be  a  prohibition  of  the  discharge  of  either  projectiles  or 
explosives  from  balloons  or  by  any  other  similar  method?  And,  as  to  the  navy, 
is  there  need  of  proscribing  the  rams  of  warships  and  torpedo  boats,  whether 
submarine  or  diving,  as  well  as  all  engines  of  the  same  kind? 

These  last  questions  belong  to  the  technical  domain,  and  we  shall  all  be 
agreed  in  referring  them  to  our  two  subcommissions. 

It  will  then  remain  to  be  decided,  if  the  second  question  of  principle,  which 
I  indicated  just  now,  shall  be  discussed  here  or  in  each  of  our  two  subcom- 
missions. 

Finally,  we  have  to  settle  the  order  of  our  deliberations.  At  first  sight,  it 
would  seem  quite  natural  to  begin  at  the  beginning,  and  discuss  first  that  prob- 
lem, fundamental  and  of  high  importance,  which  is  submitted  to  our  investigation. 

But  I  believe  it  right  to  recommend  a  contrary  procedure,  and  it  is  the  in- 
augural address  of  our  honorable  president  that  has  suggested  the  idea  to  me. 

Limitation  of  armaments,  which  forms  the  frontispiece  of  the  circular  of 
the  Russian  Government,  appeared  in  his  address  as  a  conclusion  and  as  a  kind 
of  crown — a  triumphal  crown — of  our  mutual  efforts. 

Yesterday,  too,  an  analogous  procedure  was  followed  by  the  Second  Com- 
mission on  the  motion  of  Mr.  Martens.  In  the  examination  of  the  project  dis- 
cussed at  the  Brussels  Conference,  the  last  chapters  were  taken  up  first,  so  as 
to  reserve  until  the  last  those  questions  on  which  an  agreement  appeared  more 
difficult  of  formation.  It  is  by  harmony  that  we  should  desire  to  arrive  at 
harmony. 

I  think,  gentlemen,  that  for  us,  too,  this  way  would  be  perhaps  the  best  and 
the  surest ;  but  it  is  for  you  to  decide,  and  I  confine  myself  to  expressing  on  this 
subject  my  personal  opinion. 

If  you  agree  with  this,  I  shall  first  open  a  general  discussion  bearing  on  the 
whole  of  the  business  that  has  been  assigned  us ;  you  will  decide  whether  it  is 
here  that  we  shall  enter  upon  the  discussion  of  the  second  question  of  principle 
that  I  have  pointed  out,  and  we  shall  then  decide  on  the  questions  to  refer  to  the 
subcommissions. 

These  various  proposals  are  consented  to. 

The  general  discussion  is  opened ;  but  no  one  asks  the  floor. 

The  President  then  consults  the  assembly  on  the  point  whether  it  intends  to 
discuss  in  full  the  question  of  principle  relating  to  the  reciprocal  prohibition  of 
the  use  of  new  military  improvements. 

Colonel  Gilinsky  thinks  that  this  discussion  should  be  left  to  the  subcom- 
mission. 

General  den  Beer  Poortugael  agrees  with  this  opinion. 

The  President  remarks  that,  if  the  assembly  so  decides,  the  question  of 
principle  is  to  be  discussed  in  the  naval  subcommission  as  well  as  in  the  military 
subcommission. 

The  proposal  of  Mr.  Gilinsky  is  put  to  vote  and  adopted  by  a  very  great 
majority. 

The  President  remarks  that,  if  the  assembly  so  decides  it,  the  question  of 
principle  is  to  be  discussed  in  the  naval  subcommission  as  well  as  in  the  military 
subcommission. 

They  will  have  to  consider  four  special  questions : 


SECOND  MEETING,  MAY  26,  1899  275 

Is  there  need: 

1.  Of  decreeing  by  convention  a  prohibition  on  putting  into  use  new 
firearms,  new  explosives,  and  more  powerful  powders  than  those  adopted  at 
present : 

2.  Of  limiting  in  wars  on  land  the  use  of  explosives  of  a  formidable 
power  and  in  present  existence? 

3.  Of  prohibiting  the  discharge  of  projectiles  or  of  any  explosive  from 
balloons  or  by  similar  methods? 

4.  Of  proscribing  the  use  in  naval  wars  of  torpedo  boats,  submarine  or 
divers,  or  other  engines  of  destruction  of  the  same  nature ;  and  the  construction 
in  the  future  of  war  vessels  with  rams  ? 

The  two  first  questions  ought  to  be  studied  by  the  two  subcommissions,  the 
third  is  within  the  competence  of  the  military  subcommission,  the  fourth  within 

that  of  the  naval  subcommission. 
[4]  The  Commission  agrees  to  these  proposals. 

The  President  invites  the  members  kindly  to  indicate  to  what  subcommission 
they  would  belong. 

The  meeting  adjourns. 


THIRD  MEETING 

JUNE  22,  1899 


His  Excellency  Mr.  Beemaert  presiding.. 

The  minutes  of  the  meetings  of  May  23  and  26  are  read  and  adopted. 

Mr.  Raffalovich  moves  the  printing  of  the  speech  of  his  Excellency  Mr. 
Beernaert  in  the  meeting  of  May  26.     (Assent.) 

The  President  recalls  that  the  first  subject  in  the  order  of  the  day  is  the 
discussion  of  the  reports  presented  in  the  name  of  the  two  subcommissions ;  these 
conclusions  are  unfortunately  few  in  number.  A  decision  is  to  be  reached  at 
first  upon  those  of  the  report  of  General  den  Beer  Poortugael. 

The  first  relates  to  bullets. 

The  President  has  read  the  different  formulas  which  have  been  successively 
presented  on  this  subject. 

The  subcommission  has  adopted  the  following  text  by  nineteen  votes  against 
one  and  one  abstention : 

.  The  use  of  bullets  which  expand  or  flatten  easily  in  the  human  body, 
such  as  exploding  bullets,  bullets  with  hard  jackets  whose  jacket  does  not 
entirely  cover  the  core  or  has  incisions  in  it,  should  be  prohibited. 

The  discussion  is  opened. 

General  Sir  John  Ardagh  reads  the  following  declaration : 

I  ask  permission  to  present  to  this  high  assembly  some  observations  and 
explanations  on  a  subject  which  has  already  been  submitted  to  vote. 

It  is  the  question  of  bullets. 

In  the  meeting  of  May  31,  an  article  was  accepted  by  a  considerable  majority 
against  the  use  of  bullets  with  a  hard  jacket  whose  jacket  does  not  entirely  cover 
the  core  or  has  incisions  in  it. 

It  seems  to  me  that  the  use  of  these  words  describing  technical  details  of 
construction  will  result  in  making  the  prohibition  a  little  too  general  and  absolute. 
It  would  not  seem  to  admit  of  the  exception  which  I  would  desire  to  provide  for, 
that  is,  the  present  or  future  construction  of  some  projectile  with  shock  sufficient 
to  stop  the  stricken  soldier  and  put  him  immediately  hors  de  combat,  thus  fulfilling 
the  indispensable  conditions  of  warfare  without,  on  the  other  hand,  causing  useless 
suffering. 

The  completely  jacketed  bullet  of  our  Lee-Metford  rifle  is  defective  in  this 
respect.  It  has  been  proven  in  one  of  our  petty  wars  in  India  that  a  man  per- 
forated five  times  by  these  bullets  was  still  able  to  walk  a  considerable  distance 
to  an  English  hospital  to  have  his  wounds  dressed.  It  was  proven  just  recently, 
after  the  Battle  of  Om-Durman,  that  the  large  majority  of  the  Dervishes  who 

276 


THIRD  MEETING,  JUNE  22,  1899  277 

were  able  to  save  themselves  by  flight  had  been  wounded  by  small  English  bullets, 
whereas  the  Remington  and  Martini  of  the  Egyptian  army  sufficed  to  disable. 
It  was  necessary  to  find  some  more  efficient  means,  and  to  meet  this  necessity  in 
India,  the  projectile  known  under  the  name  of  "  dumdum  "  was  made  in  the 
arsenal  of  that  name  near  Calcutta. 

In  the  dumdum  bullet,  the  jacket  leaves  a  small  end  of  the  core  uncovered. 

The  result  of  this  modification  is  to  produce  a  certain  extension  or  convexity 
of  the  point  and  to  cause  a  shock  more  pronounced  than  that  given  by  the 
completely  jacketed  bullet,  but  at  the  same  time  less  eflfective  than  that  given 

by  the  bullet  of  the  Enfield,  Snider,  or  Martini  rifles  whose  caliber  is 
[5]  larger.    The  wounds  made  by  this  dumdum  bullet  suffice  ordinarily  to  cause 

a  shock  which  stops  an  advancing  soldier  and  puts  him  hors  de  combat; 
but  their  result  is  by  no  means  designed  with  the  aim  of  inflicting  useless 
suffering. 

I  wish  to  explain  how  it  happened  that  the  dumdum  bullet  acquired  a  bad 
reputation  in  Europe.  It  is  on  account  of  certain  experiments  that  have  been 
made  with  bullets  having  a  shortened  jacket  which  did  not  resemble  the  dumdum 
bullets  at  all,  either  in  construction  or  in  effect. 

I  speak  of  the  experiments  made  at  Tiibingen  by  Professor  Bruns,  of 
which  a  report  was  published  in  the  Beitrdge  zur  Klinischen  Chdrurgie  at 
Tubingen  in  1898. 

The  bullet  of  these  experiments  had  a  leaden  point  about  one  diameter 
longer  than  the  hard  jacket,  and  in  consequence  the  flattening  and  expansion 
in  penetrating  the  body  were  considerable  and  the  wounds  excessively  severe — 
in  fact,  frightful.  These  experiments  prove  that  a  bullet  of  which  the  flattened, 
leaden  point  is  entirely  unprovided  with  a  hard  jacket  works  in  a  certain  sense 
like  an  explosive  bullet  and  produces  a  terrible  effect,  but  the  experiments  at 
Tiibingen  cannot  be  accepted  as  evidence  or  proof  against  the  dumdum  bullet, 
which  has  an  entirely  different  construction  and  effect.  At  the  same  time,  it  is  a 
fact  that  the  erroneous  conception  formed  in  Europe  about  the  character  of  the 
latter  is  entirely  due  to  the  wholly  false  idea  that  these  two  projectiles  are  almost 
identical  in  construction. 

Several  interpellations  were  made  in  the  English  Parliament  on  the  subject 
of  the  dumdum  bullet,  and  on  June  5  the  Secretary  of  State  for  India,  in  response 
to  a  question  about  the  dumdum  bullet,  said  that  the  Government  of  Her  Majesty 
saw  no  reason  for  making  an  inquiry  regarding  "  the  decisions  of  the  Govern- 
ment of  India  on  the  subject  of  the  dumdum  bullet,"  and  he  added  that  he  would 
present  to  the  House  of  Commons  the  reports  of  the  experiments  made  with  that 
projectile. 

It  scarcely  seems  necessary  for  me  to  assert  that  public  opinion  in  England 
would  never  sanction  the  use  of  a  projectile  which  would  cause  useless  suffering, 
and  that  every  class  of  projectile  of  this  nature  is  condemned  in  advance;  but 
we  claim  the  right  and  we  recognize  the  duty  of  furnishing  our  soldiers  with  a 
projectile  on  whose  result  they  may  rely, — a  projectile  which  will  arrest,  by  its 
shock,  the  charge  of  an  enemy  and  put  him  hors  de  combat  immediately. 

Heretofore  this  result  was  accomplished  by  spherical  bullets  of  the  old 
musket  which  had  a  diameter  of  20  millimetres  and  of  the  Martini  with  12 
millimetres.  No  objection  upon  humanitarian  grounds  was  ever  made  against 
the  projectiles  of  those  muskets.    Our  present  musket,  the  Lee-Metford  has  a 


278  FIRST  COMMISSION 

calibre  of  only  8  millimetres.  The  transverse  section  of  this  projectile,  which 
is  entirely  covered  by  a  jacket,  is  only  about  one-half  of  that  of  the  Martini 
bullet  and  one-sixth  of  the  spherical  bullet. 

It  is  therefore  not  surprising  that  they  produce  only  a  slight  shock.  In  fact, 
it  has  been  clearly  proven  that  our  completely  jacketed  bullet,  such  as  is  at 
present  used  in  the  English  army,  does  not  sufficiently  protect  our  soldiers  against 
the  charge  of  a  determined  enemy;  hence  we  desire  to  reserve  entire  liberty 
to  introduce  modifications  in  the  construction  of  either  the  jacket  or  the  core,  for 
the  purpose  of  causing  the  shock  necessary  for  putting  a  man  hors  de  combat, 
without  occasioning  useless  aggravation  of  suffering. 

Such  is  our  point  of  view,  and  we  can  not,  consequently,  accept  the  wording 
of  the  prohibition  voted  by  the  majority  on  the  first  reading,  which  imposes  a 
technical  restraint  on  details  of  construction. 

Nevertheless,  I  desire  to  repeat  that  we  are  completely  in  accord  with  the 
humanitarian  principles  proclaimed  in  the  Convention  of  St.  Petersburg,  and 
that  we  shall  endeavor  to  observe  them,  not  only  in  their  letter,  but  in  their  spirit 
also,  in  seeking  a  solution  of  the  problem  as  to  what  kind  of  projectile  we  shall 
adopt.  I  can  assure  this  honorable  assembly  that  it  is  very  disagreeable  to  me 
to  find  myself  obliged  to  vote,  for  the  reasons  I  have  just  explained,  against  a 
rule  inspired  by  principles  of  which  I  wholly  approve;  and  I  still  cherish  the 
hope  that  it  will  be  possible  to  arrive  at  a  unanimous  agreement,  by  means  of 
a  phraseology  which  shall  leave  aside  technical  details  of  construction  and  affirm 
the  principles  on  which  we  are  all  agreed — the  principles  enunciated  in  the 
Convention  of  St.  Petersburg,  that  is  to  say,  the  prohibition  of  the  use  of  bullets 
whose  eflFect  is  to  aggravate  uselessly  the  suflFerings  of  men  placed  hors  de  combat, 
or  to  render  their  death  inevitable. 

The  President  observes  that  the  wording  voted  for  does  not  directly  refer  to 
the  dumdum  bullets,  and  rather  approaches  the  wording  adopted  in  1868  at  St. 

Petersburg  and  to  which  the  British  Government  acceded. 
[6]   He  asks  whether  the  English  delegate,  who  approves  the  idea  on  which 

the  proposed  wording  was  based,  is  able  to  present  a  modification  of  this 
wording  which  might  obtain  all  the  votes. 

General  Sir  John  Ardagh  repeats  that  the  objection  of  his  Government 
relates  to  the  term  employed,  namely,  bullets  with  a  hard  casing  which  does  not 
entirely  cover  the  core  or  is  provided  with  incisions.  If  these  words  were  omitted 
he  could  give  his  sanction  to  the  wording  as  voted  for. 

General  den  Beer  Poortugael  and  Colonel  Gilinsky  remark  that  under  these 
conditions  the  prohibition  would  no  longer  have  any  scope ;  they  demand  the 
maintenance  of  the  text  as  it  was  adopted  by  several  technical  delegates. 

General  Sir  John  Ardagh  declares  that  he  is  obliged  to  maintain  his  negative 
vote  inasmuch  as  the  wording  amounts  to  a  condemnation  of  the  dumdum 
bullet. 

Captain  Crozier  would  like  to  have  the  details  omitted  concerning  the  con- 
struction of  the  bullet.  He  says  that  bullets  might  be  invented  which,  without 
bursting,  would  assume  the  form  of  a  bigger  caliber,  and  it  would  be  unjust  to 
deprive  the  Powers  of  the  advantages  to  be  derived  therefrom,  if  these  bullets 
would  not  produce  uselessly  cruel  wounds.  He  therefore  favors  the  omission 
of  the  words  indicated  by  Sir  John  Ardagh. 

The  President  says  he  does  not  see  what  would  remain  of  the  article  if 


THIRD  MEETING,  JUNE  22,  1899  279 

they  were  to  accept  the  modification  suggested  by  Sir  John  Ardagh  and  supported 
by  Captain  Crozier. 

Captain  Crozier  proposes  the  following  wording: 

The  employment  of  bullets  which  inflict  uselessly  cruel  wounds,  such  as 
explosive  bullets  and  in  general  every  kind  of  bullet  which  exceeds  the  limit 
necessary  in  order  to  put  a  man  hors  de  combat  at  once,  is  forbidden. 

General  Zuccari  says  that  these  observations  tend  to  revert  to  the  text 
proposed  by  Mr.  von  Khuepach,  which  would  have  the  advantage  of  reserving 
the  right  of  invention  recognized  by  the  subcommission.  Being  in  favor  of 
prohibiting  uselessly  cruel  bullets,  he  will  vote  in  the  affirmative  again,  although 
he  would  have  preferred  a  wording  going  into  less  detail. 

Colonel  Gilinsky,  after  referring  to  the  difficulty  of  finding  a  new  form 
of  wording,  says  that  bullets  whose  casing  contains  incisions  cause  too  cruel 
wounds.  It  is  rare  that  a  bullet  whose  core  is  not  covered  assumes  a  pear  shape. 
In  most  cases  it  takes  the  shape  of  a  mushroom.  The  purpose  of  war  is  to  put 
men  out  of  action,  and  ordinary  bullets  are  sufficient  for  this  purpose. 

General  Sir  John  Ardagh  regrets  that  Colonel  Gilinsky  cannot  accept  the 
modified  wording.  It  is  not  proved  that  the  dumdum  bullet  is  uselessly  cruel. 
The  Tubingen  bullet  is  the  one  that  produces  frightful  wounds. 

Colonel  Gilinsky  answers  that  the  Tiibingen  bullet  has  never  been  used  in 
war.  The  experience  of  two  wars  in  which  the  dumdum  bullet  was  used  has 
proved  that  the  wounds  inflicted  by  this  projectile  are  fearful. 

General  Sir  John  Ardagh  refers  to  the  answers  given  at  seven  different 
times  in  the  English  Parliament  on  this  question. 

Count  de  Macedo  interposes  the  declaration  that  the  difference  of  opinions 
among  the  technical  delegates  will  prevent  him  from  voting  one  way  or  the 
other. 

Colonel  Gross  von  Schwarzhoff  says  that  the  newspapers  and  even  this 
assembly  have  spoken  of  a  "  Tiibingen  bullet,"  and  he  wishes  to  warn  the  assembly 
against  forming  any  erroneous  opinion  on  this  subject.  There  is  no  firearm  fac- 
tory at  Tiibingen,  but  there  is  a  celebrated  university  of  which  one  of  the  most 
renowned  professors.  Surgeon  Bruns,  has  spent  much  time  studying  the  effect 
of  small  caliber  projectiles. 

Colonel  Gross  von  Schwarzhoff  does  not  know  what  bullet  Mr.  Bruns 
used  in  his  experiment.  At  all  events  it  was  not  the  bullet  of  the  German  army. 
And  never  has  there  been  any  question  of  introducing  therein  a  bullet  whose  core 
would  not  be  completely  covered  by  the  casing. 

General  den  Beer  Poortugael,  Colonel  Gilinsky  and  the  President  remark 
that  the  wording  proposed  by  Captain  Crozier  is  far  too  vague. 

The  President  recalls  the  fact  that  the  St.  Petersburg  Convention  which  was 
acceded  to  by  England,  is  more  precise,  since  it  prohibits  the  use  of  any  projectile 
under  four  hundred  grams  which  is  either  explosive  or  loaded  with  fulminating 
or  inflammable  substances. 

Mr.  Raffalovich  asks  that  precedence  be  given  to  the  vote  on  the  original 
text. 

The  latter  is  upheld  by  twenty  votes  to  two  (England  and  the  United  States), 
one  country  abstaining  (Portugal). 

The  following  voted  in  the  affirmative:     Germany,  Austria-Hungary,  Bel- 


280  FIRST  COMMISSION 

gium,  Denmark,  Spain,  France,  Greece,  Italy,  Japan,  Montenegro,  Netherlands, 
Persia,  Roumania,  Russia,  Serbia,  Siam,  Sweden  and  Norway,  Switzerland, 
Turkey  and  Bulgaria. 

The  President  takes  up  the  discussion  of  the  question  of  throwing  projectiles 

from  balloons. 
[7]  He  summarizes  the  passages  of  the  report  in  regard  to  this  subject. 

Captain  Crozier  calls  attention  to  the  observations  which  he  made  in  this 
connection  at  the  last  meeting  of  the  first  subcommission.  Without  wishing  to 
repeat  them,  he  desires  to  summarize  their  substance  here.  The  present  balloons 
cannot  effectively  serve  in  war.  Moreover,  their  use  for  the  purpose  in  question 
would  neither  be  humane  nor  in  accordance  with  the  spirit  which  guides  us, 
since  it  is  impossible  to  foresee  the  place  where  the  projectiles  or  other  substances 
discharged  from  a  balloon  will  fall  and  since  they  may  just  as  easily  hit  inoffensive 
inhabitants  as  combatants,  or  destroy  a  church  as  easily  as  a  battery.  However, 
if  it  were  possible  to  perfect  aerial  navigation  in  such  a  way  as  to  do  away  with 
these  defects,  the  use  of  balloons  might  decrease  the  length  of  combat  and 
consequently  the  evils  of  war  as  well  as  the  expenses  entailed  thereby.  But  there 
is  another  point  to  be  considered :  It  would  be  important  to  secure  unanimity  of 
votes  on  this  question ;  now,  three  Powers  have  endorsed  the  proposition  only  on 
condition  of  limiting  the  prohibition  to  five  years. 

By  accepting  this  limit  he  believes  that  it  will  be  possible  to  obtain  the  desired 
unanimity ;  he  therefore  embraces  the  opinion  of  the  delegates  from  Great  Britain, 
France  and  Roumania. 

General  Mounier  is  also  of  opinion  that  it  would  be  dangerous  to  impose 
restrictions  on  oneself  for  an  indefinite  length  of  time.  It  is  impossible  to  foresee 
what  the  future  has  in  reserve.  The  observation  of  Captain  Crozier  appears  to 
him  to  deserve  the  most  serious  attention.  To-day  the  projectiles  discharged  from 
a  balloon  may  make  victims  among  the  non-combatants. 

But  the  use  of  more  perfect  balloons  may  become  a  practical  and  lawful 
means  of  waging  war.  It  would  therefore  be  suitable  to  limit  the  prohibition  to 
some  definite  period  of  time,  for  instance,  five  years  or  even  more. 

Colonel  Gilinsky  admits  that  they  cannot  pledge  themselves  forever  and  he 
proposes  a  ten  year  limit. 

General  Sir  John  Ardagh  supports  the  proposition  of  Captain  Crozier. 

The  President  submits  the  following  draft  to  a  vote. 

The  discharge  of  projectiles  and  explosives  from  balloons,  kites,  and  in 
general  by  different  means  than  those  in  use  at  present,  shall  be  prohibited 
for  five  years  from  the  date  of  ratification  of  the  act  of  the  Conference. 

Lieutenant  Colonel  von  Khuepach,  after  observing  that  the  end  (second 
line)  of  the  draft  is  much  too  general,  deems  it  superfluous  to  mention  kites. 

Colonel  Gilinsky  answers  that  experiments  have  been  made  for  the  purpose 
of  utilizing  kites  as  a  means  of  warfare. 

The  President  having  observed  that  the  wording  just  proposed  is  in  reality 
a  little  vague,  Colonel  Gilinsky  declares  that  he  does  not  oppose  its  being 
modified. 

General  den  Beer  Poortugael  proposes  the  formula  "  by  means  of  aerial 
devices." 

Colonel  Gilinsky  endorses  this  suggestion. 


THIRD  MEETING,  JUNE  22,  1899  281 

Colonel  Coanda  would  like  to  know  whether  it  would  be  necessary  to  include 
among  aerial  devices,  for  instance,  the  hurling  by  mortars  of  projectiles  which 
would  burst  in  the  air  and  cause  dynamite  or  other  explosives  to  fall. 

The  President  answers  that  the  apprehension  of  Mr,  Coanda  does  not 
seem  justified,  since  the  projectiles  thrown  by  a  mortar  start  from  the  ground. 

Mr.  Beldiman  having  expressed  a  doubt  as  to  the  clearness  of  the  term 
"  aerial,"  Mr.  Raffalovich  answers  that  the  expression  "  aerial  device  "  refers 
exclusively  to  the  point  of  departure  of  the  projectile,  and  he  reads  the  passage 
in  which  Colonel  Gross  von  Schwarzhoff  had  formally  reserved  the  employ- 
ment of  mortars. 

Mr.  Bihourd  considers  that  the  term  "  aerial "  is  too  liable  to  give  rise  to 
ambiguity,  and  it  would  therefore  be  preferable  to  substitute  in  place  thereof  the 
word  "  similar." 

Colonel  Gross  von' Schw^arzhoff  observes  that  as  they  are  returning  to  the 
old  wording  they  should  not  omit  the  word  "  new." 

The  following  form  of  wording  is  put  to  a  vote  and  unanimously  adopted: 

The  discharge  of  projectiles  and  explosives  from  balloons  or  by  other 
new  methods  of  a  similar  nature  shall  be  prohibited  for  five  years  from  the 
date  of  ratification  of  the  act  of  the  Hague  Conference. 


Guns 

The  President  summarizes  the  conclusions  of  the  report. 

He  opens  up  the  discussion  on  the  proposition  of  General  den  Beer  Poortu- 
[8]  GAEL,  the  result  of  the  vote  on  which  in  the  subcommission  was  as  follows : 

9  yeas,  3  nays  and  9  abstentions.  These  abstentions  having  been  caused 
chiefly  by  lack  of  instructions  from  the  respective  Governments,  it  may  be  that 
the  latter  have  since  been  transmitted  to  the  delegates  and  that  the  discussion 
may  reach  a  definite  result. 

Jonkheer  van  Karnebeek  says  that  the  question  is  similar  to  another  one  dealt 
with  in  the  second  subcommission,  namely,  that  of  cannon.  These  two  questions 
are  difficult  to  settle  at  present;  they  would  necessitate  a  thorough  examination 
on  the  part  of  the  technicians  of  the  diflFerent  countries,  and  this  would  require 
considerable  time.  It  is  to  be  feared  that  time  would  be  lacking  for  such  an 
examination,  and  that  a  negative  conclusion  would  be  reached,  whereas  later 
on  an  understanding  might  be  secured.  And  just  as  he  took  the  liberty  of  pro- 
posing that  the  question  of  cannon  be  reserved  for  a  subsequent  examination,  he 
would  also  like  to  see  the  same  thing  done  in  regard  to  guns. 

It  ought  therefore  to  be  stated  that  the  question  remains  open  and  that  it 
remains  under  consideration  as  regards  the  various  Governments.  Otherwise 
the  risk  would  be  run  of  meeting  a  check  caused  not  by  ill-will,  but  by  the  diffi- 
culty of  passing  on  the  subject  within  so  short  a  period.  In  this  case,  the  public, 
which  has  not  been  able  to  follow  the  discussion,  would  look  at  the  result  from 
a  less  favorable  standpoint  than  it  really  warrants. 

He  proposes,  in  conclusion,  tc  reserve  the  decision  to  be  reached  until  some 
conference  to  be  held  subsequently. 


282  FIRST  COMMISSION 

The  President  remarks  that  the  proposition  of  Mr.  van  Karnebeek  is  only- 
subsidiary,  in  case  that  of  General  den  Beer  Poortugael  should  not  be  adopted. 

The  Bulgarian  Delegation  declares  that  the  instructions  which  it  lias  re- 
ceived from  its  Government  enable  it  to  accede  to  the  motion  of  General  den 
Beer  Poortugael. 

The  Delegates  from  France,  Austria-Hungary,  Turkey,  and  Japan  have 
received  contrary  instructions ;  they  would  therefore  have  to  vote  in  the  negative. 

The  Delegate  from  Great  Britain  withdraws  his  original  accession  and 
would  also  vote  in  the  negative. 

Captain  Crozier  had  abstained  because  the  United  States  are  not  in  sympathy 
with  the  spirit  of  the  proposition  and  do  not  like  to  see  any  hindrance  placed  in 
the  way  of  inventive  genius  which  might  result  in  affording  savings  in  war 
budgets.    In  view  of  this  consideration  he  will  vote  in  the  negative. 

The  President  states  that  he  has  before  him  two  motions.  Parliamentary 
usages  demand  that  he  first  put  to  a  vote  the  motion  to  postpone  the  matter. 

Jonkheer  van  Karnebeek  insists  on  the  opportuneness  of  his  proposition ; 
it  seems  to  him  that  the  respective  Governments  have  not  had  time  to  examine  the 
question  in  a  sufficiently  thorough  manner. 

The  proposition  of  Mr.  van  Karnebeek  to  refer  the  decision  on  this  question 
to  a  subsequent  conference  is  unanimously  adopted. 

The  President  asks  whether  any  delegate  wishes  to  reverse  the  negative 
decisions  adopted  in  the  first  subcommission.  He  thinks  that  there  is  no  reason 
for  doing  this.     (Assent.) 

The  President  himself  asked  the  subcommission  whether  it  did  not  intend 
to  deliberate  on  the  subject  of  a  conventional  prohibition,  for  a  fixed  period  of 
time,  of  the  utilization  of  the  new  means  of  destruction  whose  force  is  borrowed 
from  new  elements  such  as  electricity  or  chemistry.  The  subcommission  referred 
this  point  to  the  Commission  assembled  in  full  session.  The  time  has  come  to 
take  up  the  matter. 

Colonel  Gilinsky  embraces  the  opinion  of  the  President  in  this  regard, 
Russia  being  of  opinion  that  existing  means  of  waging  war  are  sufficient. 

Colonel  Gross  von  Schwarzhoff  also  considers  the  present  devices  of 
war  to  be  sufficient.  However,  we  cannot  bind  our  hands  in  advance,  for  we  do 
not  know  what  more  humane  means  may  be  invented  in  the  future. 

Colonel  Gilinsky  thinks  that  it  might  be  possible  to  accept  the  prohibition 
to  utilize  the  means  of  destruction  in  question  for  a  certain  length  of  time. 

Captain   Crozier  seconds  the  opinion  of   Mr.  Gross  von   Schwarzhoff 

The  President  asks  the  assembly  whether  it  wishes  to  have  this  question 
remain  open  likewise  and  to  have  it  referred  to  a  subsequent  examination. 
(Assent.) 

The  Commission  now  takes  up  the  discussion  of  the  conclusions  contained  in 
the  report  of  Captain  Soltyk. 

Jonkheer  van  Karnebeek,  chairman  of  the  second  subcommission,   sum 
marizes  the  results  obtained  in  the  latter  in  regard  to  naval  cannon.    The  question 
whether  the  proposition  of  Mr.  Scheine  ought  to  be  adopted  or  not  was  left 
open  there  because  it  was  agreed  that  the  Governments  should  have  plenty  of  time 
to  examine  it  thoroughly.    It  would  probably  be  necessary  to  assemble  a  technical 

committee  in  each  country  to  make  some  practical  tests. 
[9]  A  premature  decision  of  this  question  would  be  regrettable;  he  therefore 


THIRD  MEETING,  JUNE  22,  1899  283 

proposes  to  leave  it  open,  the  same  as  that  in  regard  to  guns,  and  to  com- 
mend it  to  the  serious  study  of  the  Governments.  In  this  manner  it  will  be  possible 
to  avoid  the  responsibility  of  a  negative  resolution,  due  solely  to  a  lack  of  time. 

Mr.  Beldiman  declares  that  in  accordance  with  instructions  which  he  has 
received  from  his  Government,  he  is  able  to  adhere  to  the  motion  of  the  Russian 
delegate. 

The  President  gives  precedence  to  the  motion  to  postpone  the  matter  as 
made  by  Mr.  van  Karnebeek. 

It  is  adopted  unanimously. 

On  motion  of  Captain  Scheine,  the  Commission  expresses  a  wish  that  the 
Governments  may  make  an  earnest  examination  of  this  question. 

The  President  says  that  an  almost  unanimous  result  was  obtained  in  regard 
to  the  prohibition  to  employ  projectiles  whose  sole  purpose  is  to  spread  asphyxi- 
ating or  deleterious  gases,  and  he  opens  up  the  discussion  on  this  subject. 

Captain  Mahan  having  been  the  only  one  to  express  himself  in  the  negative, 
wishes  to  explain  the  ground  on  which  he  based  his  action.  Although  he  has 
received  no  instruction  as  yet  on  this  subject,  he  will  maintain  his  negative  vote. 
The  question  of  asphyxiating  gases  is  still  intangible,  since  projectiles  of  this 
kind  do  not  really  exist.  Besides,  he  thinks  that  from  a  humane  standpoint  it 
is  no  more  cruel  to  asphyxiate  one's  enemies  by  means  of  deleterious  gases  than 
with  water,  that  is  to  say,  by  drowning  them,  as  happens  when  a  vessel  is  sunk 
by  the  torpedo  of  a  torpedo-boat. 

For  these  two  reasons  it  is  impossible  for  him  to  change  his  vote. 

Jonkheer  van  Karnebeek  believes  that  Captain  Mahan  regards  the  matter 
too  exclusively  from  the  standpoint  of  naval  war.  Now,  the  question  ought  to  be 
considered  likewise  from  a  standpoint  of  land  war;  and  in  the  case  of  the  latter 
the  comparison  between  the  two  modes  of  asphyxiation  is  not  appropriate. 

It  has  been  very  justly  remarked  to  the  second  subcommission,  that  the  use 
of  the  projectiles  in  question  would  endanger  the  existence  of  a  large  number  of 
non-combatants,  for  instance,  in  case  of  a  siege. 

However,  another  consideration  comes  up.  The  proposition  of  his  Excel- 
lency Mr.  Beernaert  to  prohibit  the  use  of  new  methods  of  destruction  had  in- 
curred the  criticism  of  being  too  vague.  Now,  it  is  a  question  here  of  an  expressly 
defined  method.  Although  it  is  not  yet  invented,  a  fairly  clear  idea  may  already 
be  formed  of  it;  it  is  therefore  easy  to  pass  on  the  subject.  He  consequently 
proposes  to  adopt  the  almost  unanimous  decision  of  the  subcommission. 

Captain  Scheine  wishes  to  answer  the  second  observation  made  by  Mr. 
Mahan.  He  is  of  opinion  that  no  comparison  can  be  made  between  the  effect 
produced  by  torpedoes  and  that  of  asphyxiating  gases.  The  latter  may  as  a  matter 
of  fact  be  compared  rather  to  the  poisoning  of  a  river,  which  Mr.  Mahan  did 
not  wish  to  allow. 

Many  persons  may  be  saved  even  if  they  have  been  wounded  or  placed  out 
of  action,  in  case  a  vessel  is  sunk  by  a  torpedo.  Asphyxiating  gases,  on  the  con- 
trary, would  exterminate  the  whole  crew. 

This  procedure  would  therefore  be  contrary  to  the  humane  idea  which  ought 
to  guide  us,  namely,  that  of  finding  means  of  putting  enemies  out  of  action  with- 
out putting  them  out  of  the  world. 

Captain  Mahan  insists  on  his  view. 

Count  de  Macedo  thinks  that  in  case  of  a  shock  by  a  torpedo  there  would 


284  FIRST  COMMISSION 

always  be  means  of  saving  a  large  number  of  persons ;  therefore  the  comparison 
made  by  Captain  Mahan  between  the  baneful  effect  of  torpedoes  and  of  asphyxi- 
ating gases  does  not  appear  to  him  admissible. 

Captain  Mahan  answers  that  it  would  not  be  possible  to  save  many  persons, 
in  view  of  the  small  dimensions  of  the  torpedo-boat. 

Mr.  Bille  thinks  that  there  is  not  even  any  occasion  to  discuss  the  utilization 
of  a  projectile  which  does  not  exist,  when  the  delegates  of  Powers  such  as 
Russia  and  Germany  have  stated  that  the  present  means  of  warfare  are  more 
than  sufficient. 

The  prohibition  suggested  by  the  subcommission  is  put  to  a  vote  and  unani- 
mously accepted,  with  the  exception  of  one  vote  (United  States). 

The  delegates  from  Germany,  Austria-Hungary,  Great  Britain,  Italy,  Japan 
and  Portugal  remarked  that  they  accepted  the  prohibition  only  on  condition  that 
it  be  adopted  unanimously ;  it  appears,  for  that  matter,  both  from  the  votes  given 
by  the  subcommission  and  from  the  report  of  Count  Soltyk,  that  this  condition 
has  been  expressly  stipulated. 

The  meeting  adjourns. 


[10]  Annex  I  to  the  Minutes  of  the  Meeting  of  June  22 

REPORT  PRESENTED  IN  THE  NAME  OF  THE  FIRST  SUBCOMMIS- 
SION BY  GENERAL  DEN  BEER  POORTUGAEL 

Gentlemen  :  Having  had  the  honor  of  being  named  reporter  of  the  military 
subcommission  of  the  First  Commission,  I  will  endeavor  to  be  worthy  of  the 
mission  with  which  the  confidence  of  my  colleagues  has  invested  me ;  to  state  as 
briefly  and  faithfully  as  possible  the  result  of  our  deliberations,  of  the  votes  and 
propositions  that  the  subcommission  has  to  submit  to  you. 

The  subcommission,  inspired  by  the  magnanimous  ideas  emanating  from  the 
generous  initiative  of  the  Emperor  of  Russia,  has  examined  with  great  care  and 
conscientious  attention,  the  points  of  the  Russian  circular  of  December  30,  1898, 
which  have  been  referred  to  its  examination. 

Powders 

In  the  general  discussion.  Captain  Crozier  (United  States)  declared  that  the 
prohibition  of  the  use  of  more  powerful  explosives  than  those  actually  adopted 
would  defeat  one  of  the  principal  ends  of  the  Russian  proposition,  namely, 
economy. 

A  powder  being  powerful  in  proportion  to  the  production  of  gas  furnished 
by  the  charge  and  the  temperature  of  combustion,  one  might  easily  produce  a 
powder,  which,  furnishing  a  greater  volume  of  gas  at  a  lower  temperature  of 
combustion,  would  be  more  powerful  than  any  powder  actually  in  use,  and  which 
at  the  same  time,  on  account  of  the  low  temperature,  would  wear  the  gun  less, 
permitting  thus  its  longer  use. 


THIRD  MEETING,  JUNE  22,  1899 :  ANNEXES  285 

The  delegates  pronounced  unanimously  in  favor  of  the  absolute  liberty  of 
each  country  in  all  which  concerns  the  use  of  new  loading  powders. 

Explosives  in  the  field 

Concerning  the  use  of  explosives  in  the  field  artillery,  Colonel  Gilinsky, 
in  the  name  of  the  Russian  Government,  proposed  that  mining  or  fougade  shells 
should  not  be  used  in  this  artillery  and  that  they  should  limit  themselves  to  the 
existing  explosives,  with  prohibition  of  the  formidable  explosives,  which  are 
employed  for  sieges. 

On  the  demand  of  Colonel  Gross  von  Schwarzhoff  (Germany)  concern- 
ing the  true  meaning  of  the  proposition,  the  President  said  that  the  import  was 
that  nations  should  forbid  the  use  in  the  field  of  the  very  powerful  explosives 
already  adopted  in  some  armies. 

The  question  of  the  prohibition  in  the  field  artillery  of  mining  or  fougade 
shells  being  put  to  vote;  ten  countries  voted  yea  (Belgium,  Denmark,  Nether- 
lands, Persia,  Portugal,  Serbia,  Russia,  Siam,  Switzerland,  Bulgaria),  eleven 
voted  nay. 

Upon  the  question  whether  the  use  of  new  explosives  not  yet  utilized 
could  be  prohibited,  twelve  countries  voted  nay  (Germany,  United  States, 
Austria-Hungary,  Denmark,  Spain,  France,  Great  Britain,  Italy,  Japan, 
Roumania,  Sweden  and  Norway,  Turkey),  the  others,  nine,  yea. 

Cannons 

Colonel  Gilinsky  (Russia)  proposed  that  in  the  interest  of  economy, 
nations  should  agree  not  to  change  the  cannon  at  present  in  use  in  the  field 
artillery.  At  the  same  time,  countries  in  arrears  should  have  the  opportunity 
to  place  themselves  on  an  equality  with  the  others. 

Following  an  observation  of  General  Zuccari  (Italy)  the  President  de- 
manded if  they  were  agreed  that  permission  should  be  given  at  all  events  to 
countries  in  arrears  to  perfect  their  armament  in  order  to  place  it  on  a  level 
with  those  now  more  advanced. 

Mr.  BiHOURD  (France),  having  observed  that  this  formula  would  defeat 
the  purpose  of  economy  aimed  at,  the  President  called  for  a  vote  upon  the 
question  whether  in  case  new  improvements  were  prohibited,  this  proposition 
should,  nevertheless,  permit  to  all  the  adoption  of  the  most  improved  types  now 
in  use. 

The  votes  showed  the  great  difficulties  of  an  agreement;  as  Colonel 
Gilinsky  observed,  many  States,  neighbors  to  each  other,  are  not  in  possession 

of  satisfactory  types,  as  is  the  case  of  guns. 
[11]  Five  countries  only  (United  States,  Belgium,  Italy,  Serbia  and  Siam) 
voted  yea;  the  delegates  from  Germany,  Austria-Hungary,  Netherlands, 
and  Switzerland  abstained  on  account  of  certain  obtruding  restrictions.  The 
delegate  from  Denmark  said  that  his  country  must  change  its  stock,  that  it 
would  be  necessary  to  try  the  types  in  order  to  take  the  best,  but  that  the  countries 
which  possessed  them  would  not  show  them;  therefore  it  would  be  necessary 
to  state  exactly  what  is  admissible  and  what  is  not. 

The  delegates  from  Spain,  France,  Japan,  Portugal  and  Roumania  expressed 
themselves  to  the  same  effect.     The  delegate  from  Russia  declared  that  the 


286  FIRST  COMMISSION 

Russian  proposition  meant  to  permit  the  adoption  of  the  best  cannon  in  use, 
that  is  to  say,  rapid  firing  cannon.  The  delegates  from  Persia  and  Bulgaria 
embraced  the  proposition  of  Russia.  The  delegate  from  Great  Britain  said 
that  his  Government  was  not  disposed  to  accept  any  limitation.  The  delegates 
of  Sweden  and  Norway  and  of  Turkey  made  reservations. 

In  consequence  of  this  vote  the  President  thought  he  should  establish 
the  question  of  principle.  Is  there  any  reason  for  the  nations  represented  in 
the  Conference  to  forbid  themselves,  for  a  fixed  period  and  notably  for  reasons 
of  economy,  to  modify  their  armament  cannons  by  excluding  the  use  of  every  new 
invention  ? 

All  the  delegates  replied  no,  except  Russia  and  Bulgaria,  who  abstained. 
The  President,  declaring  that  a  very  great  majority  is  hostile  to  any  limitation 
concerning  cannons,  considers  that  there  is  no  more  reason  for  discussion  on 
this  point. 

Bullets 

At  the  first  sitting  of  the  subcommission  Colonel  Kunzli  (Swiss)  proposed 
the  prohibition  of  certain  projectiles,  which  aggravate  wounds  and  increase  the 
sufferings  of  the  wounded.    He  said  he  had  in  view  the  bullets  called  dumdum. 

The  Netherland  delegate,  den  Beer  Poortugael,  has  adhered  to  this 
proposition,  his  Government  having  charged  him  to  demand  the  formal  inter- 
diction of  the  use  of  the  dumdums  and  similar  projectiles,  which  make  incurable 
wounds.  He  said  that  the  dumdum  bullet  whose  point  is  very  soft,  whose 
projectile  covering  is  very  hard,  and  whose  interior  is  formed  of  a  softer  sub- 
stance, makes,  by  exploding  at  the  slightest  resistence,  enormous  ravages  in  the 
body,  its  entrance  being  very  small,  but  its  exit  very  large.  It  is  sufficient  to 
disable  an  armed  man  for  the  rest  of  the  campaign,  and  such  ravages  are  not 
necessary. 

Sir  John  Ardagh  (England)  said  that  there  must  be  a  misunderstanding, 
seeing  that  dumdums  are  balls  like  any  other  ordinary  projectiles. 

The  President  observed  that  the  proposition  of  the  Netherland  Govern- 
ment was  only  an  extension  of  the  principle  sanctioned  at  St.  Petersburg  in 
1868  and  he  demanded  for  the  next  sitting  precise  and  clear  texts. 

Two  formulas  have  been  presented :  that  of  Colonel  Kunzli  :  "  Prohibition 
of  infantry  projectiles  such  as  have  the  point  of  the  casing  perforated  or  filed, 
and  whose  direct  passage  through  the  body  is  prevented  by  an  empty  interior 
or  by  the  use  of  soft  lead  " ;  and  that  of  the  Russian  Government :  "  The  use 
of  bullets,  whose  envelope  does  not  entirely  cover  the  core  at  the  point,  or  is 
pierced  with  incisions,  and,  in  general,  the  use  of  bullets  which  expand  or  flatten 
easily  in  the  human  body,  ought  to  be  prohibited,  since  they  do  not  conform  to  the 
spirit  of  the  Declaration  of  St.  Petersburg  in  1868." 

Colonel  VON  Khuepach  (Austria)  is  of  the  opinion  that  it  would  be 
necessary  to  confine  themselves  to  prohibiting  by  agreement  the  use  of  bullets 
which  would  produce  uselessly  cruel  wounds,  without  entering  into  details, 
and  the  more  so,  since  it  would  not  be  possible  to  completely  avoid  mutilations. 

Sir  John  Ardagh,  in  accord  with  the  Austrian  delegate,  adds  that  there  is 
a  difference  in  war  between  civilized  nations  and  that  against  savages.  If,  in 
the  former,  a  soldier  is  wounded  by  a  small  projectile,  he  is  taken  away  in  the 
ambulance,  but  the  savage,  although  run  through  two  or  three  times,  does  not 
cease  to  advance. 


THIRD  MEETING,  JUNE  22,  1899:  ANNEXES  287 

For  this  reason  the  English  delegate  demands  the  liberty  of  employing, 
projectiles  of  sufficient  efficacy  against  savage  races. 

Mr.  Raffalovich  explains  that  the  ideas  expressed  by  Sir  John  Ardagh 
are  contrary  to  the  humanitarian  spirit  which  rules  this  end  of  the  ninteenth 
century.  He  shows  besides  that  the  distinguishing  between  the  enemies  to 
wage  war  against  and  the  projectiles  to  be  used  would  necessarily  induce  com- 
plications of  equipment. 
[12]  Colonel  Gilinsky  has  called  attention  to  the  fact  that  the  ball  of  the  small 
caliber  gun  does  not  stop  the  attack  of  savages,  not  because  they  are 
savages;  it  does  not  even  arrest  any  more  the  attack  of  a  civilized  army,  for 
such  is  the  effect  of  the  small  caliber.  In  fact  the  man  seriously  wounded  can 
still  advance  during  some  time  and  even  fight.  That  is,  therefore,  an  argument, 
in  favor  of  guns  of  large  caliber.  The  Russian  caliber  of  7^/2  mm.  (0.3  inches) 
stops  the  attack  very  well.  By  continually  diminishing  the  caliber,  too  small 
a  caliber  is  reached  and  with  it  the  necessity  of  employing  the  dumdum  bullets. 
As  to  the  savages,  they  are  unfortunately  not  secured  against  the  use  of 
explosive  balls.  In  the  Declaration  of  St.  Petersburg  of  1868,  the  contracting 
Powers  have  decided  not  to  employ  these  balls  in  war  among  themselves.  It  is 
clear  that  there  is  a  hiatus  in  the  Declaration  of  1868,  a  hiatus  which  permits 
the  employment  not  only  of  the  dumdum  bullets,  but  even  of  explosive  balls, 
against  savage  tribes. 

The  President  believes  that  he  expresses  the  opinion  of  the  assembly  in 
saying  that  there  can  be  no  distinction  established  between  the  projectiles  per- 
mitted and  the  projectiles  prohibited  according  to  the  enemies  against  which  they 
fight  even  in  case  of  savages. 

As  a  result  of  the  discussion,  the  Russian  formula,  which  had  received 
the  adherence  of  the  majority,  was  given  the  following  wording  agreed  upon 
by  the  delegates  of  Russia,  France,  and  Roumania. 

The  use  of  bullets  which  expand  or  flatten  easily  in  the  human  body 
(making  wounds  uselessly  cruel),  such  as  explosive  bullets,  bullets  with  a 
hard  envelope  which  does  not  entirely  cover  the  core  or  is  pierced  with 
incisions,  ought  to  be  prohibited. 

Nineteen  countries  declared  themselves  affi,rmatively  (Germany,  United 
States  of  America,  Belgium,  Denmark,  Spain,  France,  Japan,  Netherlands, 
Persia,  Portugal,  Italy,  Roumania,  Russia,  Serbia,  Siam,  Sweden  and  Norway, 
Switzerland,  Turkey  and  Bulgaria). 

One  country  for  the  negative  (Great  Britain)  ;  one  country  (Austria-Hun- 
gary) abstained. 

Launching  of  projectiles  from  elevated  balloons 

The  proposition  of  the  Russian  Government  prohibiting  the  hurling  of  pro- 
jectiles from  elevated  balloons  or  by  analogous  means  is  discussed,  and  your 
reporter  declares  that  his  Government  has  authorized  him  to  support  it.  In  his 
opinion,  to  permit  the  use  of  such  infernal  machines,  which  seem  to  fall  from  the 
sky,  exceeds  the  limit.  When  one  is  forced  to  make  war,  it  should  be  carried 
on  as  energetically  as  possible,  but  it  does  not  follow  that  all  means  are  permitted. 

He  calls  to  mind  Articles  12  and  13  of  the  final  protocol  of  the  Conference 
of  Brussels  of   1874  and  closes  by  saying  that  with  the  progress  of  science 


288  FIRST  COMMISSION 

things  which,  yesterday  even,  appeared  incredible,  are  reaHzed  to-day.  The  use 
of  projectiles  or  other  engines,  filled  with  soporific,  deleterious  gas  which  if 
discharged  from  balloons  in  the  midst  of  troops  would  at  once  disable  them,  may 
be  foreseen.  As  it  is  impossible  to  guard  against  such  proceedings,  it  resembles 
perfidy,  and  everything  which  resembles  that  ought  to  be  scrupulously  guarded 
against.     Let  us  be  chivalrous  even  in  the  manner  of  carrying  on  war. 

Colonel  VON  Schwarzhoff  (Germany)  having  called  attention  to  the  fact 
that  it  was  not  the  intention  to  prohibit  the  use  of  mortars  or  other  cannons 
with  an  elevated  range,  but  that  the  words  similar  methods  are  applied  only 
to  new  methods,  not  yet  invented,  the  subcommission,  in  accord  with  this  inter- 
pretation, adds  to  dissipate  every  misunderstanding  the  word  "  new  "  between 
the  words  **methods  "  and  '*  similar." 

Colonel  GiLiNSKY  adds  besides,  that,  in  the  opinion  of  the  Russian  Govern- 
ment, the  different  ways  of  injuring  the  enemy  used  at  present  are  quite  sufficient. 

The  proposition  is  put  to  a  vote,  and  all  the  delegates  declare  themselves 
for  the  prohibition,  with  the  exception  of  those  of  Great  Britain,  France  and 
Roumania,  who  desire  to  limit  the  agreement  to  five  years. 

Guns 

The  question  of  guns  has  occupied  the  subcommission  the  longest  time.  It 
was  discussed  during  four  sittings. 

Colonel  GiLiNSKY  (Russia)  brought  forward  a  proposition  whose  adoption 
would  prevent  new  expenditures.  The  gun  in  use  in  the  principal  armies  being 
nearly  the  same  caliber  and  quality,  the  Russian  Government  proposes  that  the 
different  countries  should  bind  themselves  by  agreement,  for  a  number  of  years 
to  be  determined,  not  to  replace  with  others  the  guns  now  in  service.  It  would 
only  be  a  question  of  determining  for  a  certain  time  the  present  type,  excluding, 
for  example,  the  automatic  gun,  which  for  the  moment  exists  only  in  a 
[13]  projected  state  and  is  not  yet  adopted  anywhere.  Improvements  not  modi- 
fying essentially  the  present  gun  and  not  changing  it,  would  be  permitted. 

Captain  Ayres  d'Ornellas,  delegate  from  Portugal,  does  not  dispute  the 
fact  that  the  gun  is  nearly  the  same  in  the  different  armies,  but  observes  that 
the  caliber  differs,  varying  between  6  and  8 ;  he  demands  whether  the  stipulation 
proposed  aims  only  at  guns  and  cannons  in  use  or  if  it  is  applied  equally  to 
uncompleted  arms  which  are  about  to  be  adopted. 

The  President  supposes  that  it  would  be  understood  that  nations  in  arrears 
could  put  themselves  on  a  level  with  the  others. 

He  asks  whether  it  would  not  be  expedient  to  present  a  precise  formula 
as  to  a  minimum  of  caliber,  and  the  delegate  from  the  Netherlands  proposes  to 
accept  any  caliber  from  6  to  8  mm. 

After  an  exchange  of  views  upon  the  technical  details  of  the  Russian  propo- 
sition, the  discussion  ended  on  the  26th  of  May  with  declarations  which  made  it 
apparent  that  there  was  a  very  great  divergency  of  opinion  among  the  delegates, 
the  greater  part  of  whom  demanded  clear  and  precise  formulas. 

The  President  expresses  the  hope  that  such  formulas  will  be  presented  at 
the  next  meeting.  It  would  be  well  to  fix  the  minimum  of  caliber,  the  weight  of 
the  projectiles,  the  initial  speed  and  the  maximum  of  shots  per  minute,  and  to 
exclude  automatic  loading. 

Count  Barantzew,  Russian  delegate,  having  sent  these  requests  by  telegraph 


THIRD  MEETING,  JUNE  22,  1899 :  ANNEXES  289 

to  his  Government,  the  members  soon  after  received,  in  addition  to  the  original 
proposition,  two  propositions,  one  from  the  Russian  Government,  the  other  from 
the  delegate  of  the  Netherlands. 

The  Russian  proposition  points  out  the  modifications,  improvements  or 
changes  that  it  would  be  permitted  to  make  in  the  gun  during  a  certain  time  to  be 
fixed: 

1.  The  minimum  of  the  weight  of  the  gun  is  fixed  at  4  kilograms. 

2.  The  minimum  of  the  caliber  at  6^  millimeters. 

3.  The  weight  of  the  ball  shall  not  be  less  than  10^4  grammes. 

4.  The  initial  speed  shall  not  exceed  720  meters. 

5.  The  rapidity  of  firing  be  limited  to  25  shots  per  minute. 

6.  Explosive  and  dilatable  balls,  as  well  as  automatic  loading,  are 
prohibited. 

The  formula  presented  by  General  den  Beer  Poortugael  was  the  following : 

Countries  agree  to  use  in  their  armies  and  fleets,  during  five  years,  com- 
mencing from  the  moment  when  the  present  act  shall  be  signed,  only  guns  in 
use  or  being  made  at  this  time. 

Concerning  guns  being  made,  only  those  will  be  tolerated  of  an  existing 
model,  varying  only  between  6  and  8  mm. 

Improvements  permitted  must  be  of  a  nature  to  change  neither  the 
model,  the  caliber,  nor  the  initial  speed  existing. 

After  a  discussion  upon  balls,  powders,  and  cannons,  the  question  of  guns 
was  again  broached  in  the  sitting  of  May  31. 

Colonel  Count  Barantzew  has  said  that,  although  the  subcommission  found 
itself  met  by  a  second  Russian  formula,  given  in  deference  to  an  expressed  de- 
sire, he  hoped  that  they  would  revert  to  the  text  of  the  original  proposition, 
which  answered  better  to  the  intention  of  his  Government  (to  stop  expenses  in 
establishing  the  gun).  He  fears  that  the  data  detailed  in  the  second  formula 
will  only  be  a  matter  for  controversy. 

After  an  exchange  of  views  among  several  delegates,  the  President  put 
at  first  to  a  vote  the  text  proposed  by  your  reporter,  a  text  accepted  by  the 
Russian  delegate. 

Colonel  Gross  von  Schwarzhoff,  has  expressed  the  opinion  that  it  did 
not  seem  probable  that  the  proposition  could  be  accepted  because  it  permits  im- 
provements in  the  existing  guns  without  giving  a  clear  and  precise  definition 
of  these.  It  would  be  very  difficult  to  establish  what  improvements  are  permitted 
or  prohibited.  What  authority  would  decide  this  question?.  In  case  of  doubt  it 
would  be  necessary,  in  order  to  fulfil  loyally  the  conditions  of  the  convention,  to 
reveal  the  new  model  to  the  other  Powers,  to  ask  their  consent  before  adopting 
it ;  as  that  is  impossible,  he  regrets  that  he  is  forced  to  vote  in  the  negative. 

The  delegates   from  the  United   States,   Austria-Hungary,   France,   Great 

Britain,  Italy,  Japan,  Portugal,  Serbia,  and  Turkey  express  the  same  sentiment. 

The  delegates  from  Belgium,  Denmark,  Spain,  Netherlands,  Persia,  Russia, 

[14]   Siam,  Sweden  and  Norway,  Switzerland,  and  Bulgaria  have  voted  yea,  the 

last  country  with  reservations. 

The  delegate  from  Roumania  abstained  from  voting  for  want  of  instruction 
from  his  Government. 

The  vote  is  summed  up  as  follows,  nine  yeas,  one  yea  with  reservation,  ten 
nays,  and  one  abstention. 


290  FIRST  COMMISSION 

The  President  put  afterwards  to  vote  the  Russian  text.  Colonel  Gross 
VON  ScHWARZHOFF  has  Criticized,  one  by  one,  the  different  details  of  this 
formula,  in  conclusion  of  which,  according  to  him,  this  proposition  was  inaccept- 
able.    He  voted  nay. 

The  delegate  from  Austria-Hungary,  Lieutenant  Colonel  von  Khuepach, 
would  be  able  to  accept  a  conventional  restriction,  but  only  upon  a  principal 
question.  If  details  are  to  be  entered  into,  he  thinks  that  it  would  be  necessary 
that  competent  persons  of  all  the  countries  represented  should  come  to  an 
agreement  upon  the  possible  limitations,  before  rendering  them  obligatory,  as 
has  been  done  for  the  revision  of  the  convention  of  Geneva. 

He  has  voted  nay,  as  well  as  the  delegates  from  the  United  States,  Belgium, 
Denmark,  Spain,  Italy,  Japan,  Portugal,  Roumania,  Serbia,  Siam,  Switzerland 
and  Turkey. 

The  delegates  from  the  Netherlands,  Persia,  Russia,  and  Bulgaria  have 
voted  yea,  this  latter  ad  referendum.  The  delegate  from  France  has  declared 
that  he  was  waiting  for  instructions. 

There  are  then  13  nays,  1  yea,  1  yea  with  reservations,  2  abstentions. 

A  few  days  after  the  subcommission  came  together  again  to  examine  a  new 
proposition  presented  by  the  Netherland  delegate,  viz. : 

During  a  period  of  five  years,  commencing  with  the  date  of  the  present 
act,  the  countries  agree  not  to  replace  the  guns  actually  in  use  in  their 
armies  by  guns  of  another  model.  But  they  do  not  prohibit  the  making  of 
any  improvement  or  any  perfecting  of  the  guns  actually  in  use,  which  might 
seem  advantageous  to  them. 

The  countries  which  have  a  gun  of  an  out-of-date  model,  that  is  to 
say,  of  a  caliber  superior  to  8  millimeters  or  without  stock  can  adopt  the 
•existing  models. 

The  delegate  from  the  Netherlands  explained  in  a  speech  which,  upon  the 
■proposal  of  the  President  and  of  Mr.  Raffalovich,  has  been  inserted  in  the 
proces-verhal  and  printed,  the  economical  and  political  motives  which  have  de- 
cided him  to  make  this  new  proposition. 

Colonel  voN  Schwarzhoff  observes  that  the  purpose  of  economy  would 
not  be  attained  because  the  improvements  introduced  in  the  guns  of  one  country 
would  oblige  other  Governments  to  adopt  them  in  their  turn,  and  that  the  latter, 
being  obliged  to  expend  more  or  less  considerable  sums  for  their  guns,  should,  at 
least,  preserve  the  liberty  of  choosing  the  gun  which  should  seem  best  to  them. 
Not  knowing  beforehand  whether  their  gun  actually  in  use  would  lend  itself 
to  the  necessary  transformations,  they  could  not  agree  to  preserve  the  model 
of  it.  The  delay  fixed  at  five  years  would  probably  double  the  expenditures 
ifirst,  for  the  improvements  of  the  guns  in  use,  afterwards  for  the  making  of  a 
new  gun. 

The  author  of  the  proposition  has  replied  that  it  was  hardly  probable  that 
in  the  short  space  of  five  years  there  would  be  any  necessity  for  notable  im- 
provements in  the  existing  guns,  and  he  adds  that  in  any  case  there  exists  a 
•considerable  difference  between  the  expenses  to  be  made  with  a  view  of  introduc- 
ing an  improvement  in  the  existing  gun,  outlays  usually  inconsiderable,  and  those 
imposed  by  a  complete  change  of  armament,  which  requires  3  guns  per  man  and 
:.amounts  for  an  army  of  500,000  infantry  to  75,000,000,000  florins. 

The  delegates  from  Bulgaria,  Messrs.  Stancioff  and  Hessaptchieff,  have 


THIRD  MEETING,  JUNE  22,  1899:  ANNEXES  291 

made  the  objection  that  if  the  proposition  were  adopted,  States  which  have  guns 
of  8  milHmeters  (0.31  inch)  and  which  could  not  change  them  would  be  in  a 
condition  of  inferiority  as  compared  with  countries  at  present  in  arrears  and 
which  would  have  the  liberty  of  adopting  a  better  model. 

The  author  of  the  proposition  has  replied  that  the  guns  of  8  millimeters  are 
very  satisfactory,  that  several  armies  are  provided  with  them  and  that  Russia, 
from  whom  the  proposition  emanates,  has  a  gun  whose  caliber  differs  very 
little  from  8  mm. 

Mr.  MiYATOViTCH  (Serbia)  says  that  he  accepts  that  proposed  wording, 
while  suggesting  the  addition  that  countries  in  arrears  shall  have  the  opportunity 
of  improving  their  gun  also. 

He  does  not  insist  on  this  amendment  in  presence  of  the  declaration  of  the 
President  that  the  first  paragraph  of  the  resolution  of  the  Netherland  delegate 
guards  this  right  also  to  states  in  arrears. 

To  the  objection  bearing  upon  the  impossibility  of  the  control  to  be  exer- 
cised, raised  incidentally  by  the  English  delegate  and  the  Netherland  delegate, 
Messrs.  Raffalovich  and  Gilinsky  have  replied  that  the  most  effective  guaranty 
would  be  found  in  the  good  faith  of  the  contracting  Governments,  as  well  as 
in  the  censure  of  opinion. 

Colonel  Gross  von  Schwarzhoff  remarks  that  it  is  not  a  question  of  bad 
[15]  faith;  he  has  in  view  the  disputes  which  may  ^rise  in  good  faith  relative 
to  the  import  of  certain  modifications. 

On  the  vote,  two  countries  only  have  voted  nay  (Germany,  Italy). 

Nine  countries  have  voted  yea  (Denmark,  Spain,  Netherlands,  Persia,  Rou- 
mania,  Russia,  Serbia,  Siam,  Sweden  and  Norway). 

Nine  countries  did  not  vote.  The  United  States,  Austria-Hungary,  France, 
Japan,  Turkey,  Bulgaria  (for  want  of  instructions).  Great  Britain,  Portugal  and 
Switzerland. 

From  what  precedes  it  follows,  gentlemen,  that  your  subcommission  has 
only  the  proposition  relative  to  the  prohibition  of  bullets  which  expand  or  flatten 
easily  when  penetrating  the  human  body,  as  well  as  that  relative  to  the  discharge 
of  projectiles  from  balloons,  to  submit  to  you.  The  question  of  the  gun  remains 
open,  six  delegates,  who  refrained  from  voting,  having  done  so  for  want  of 
instructions  from  their  respective  Governments. 

Gentlemen :  In  asking  you  to  unite  with  me  in  expressing  our  indebtedness 
to  our  honorable  president  for  the  authoritative  manner  in  which  he  has  directed 
our  debates,  .for  the  extreme  clearness  with  which  he  has  explained  the  most 
difficult  technical  points,  I  am  only  anticipating  your  desires;  also  I  beg  to 
express  our  thanks  to  our  secretaries,  who  have  been  so  impartial  in  drawing  up 
the  proces-verhal  of  our  meetings,  a  considerable  and  difficult  task. 

June  11,  1899.  den  Beer  Poortugael. 

Annex  II  to  the  Minutes  of  the  Meeting  of  June  22 

REPORT  PRESENTED  IN  THE  NAME  OF  THE  SECOND  SUBCOMMIS- 
SION BY  COUNT  SOLTYK 

Gentlemen:  While  taking  the  liberty  of  submitting  to  you  the  report  on 
the  discussions  which  have  taken  place  at  the  meetings  of  the  second  subcom- 


292  FIRST  COMMISSION 

mission  of  the  First  Commission,  I  beg  of  you  at  the  same  time  to  rest  assured 
that  I  have  been  guided  in  this  work  only  by  a  desire  to  respond  to  the  mark 
of  confidence  with  which  you  have  kindly  honored  me. 

The  discussion  on  paragraphs  1,  2,  3,  and  4  of  the  circular  note  of  his 
Excellency  Count  Mouravieff,  dated  St.  Petersburg,  December  30,  1898,  has 
often  given  occasion  here  to  the  representatives  of  the  navies  of  the  civilized 
world  to  demonstrate  their  thorough  knowledge  in  the  vast  and  complicated 
domain  of  maritime  technology. 

The  representative  of  the  Imperial  Russian  Navy  has  several  times  had  the 
kindness,  on  the  invitation  of  the  president,  to  undertake  a  new  wording  of  the 
various  paragraphs  in  order  to  afford  his  colleagues  a  point  of  departure  for  their 
discussions.  As  a  matter  of  fact,  during  the  course  of  the  deliberations  several 
doubts  have  arisen  as  to  the  exact  scope  and  significance  of  the  various  questions 
propounded  in  said  circular. 

With  a  view  to  facilitating  and  abbreviating  my  report,  I  have  taken  the 
liberty,  gentlemen,  to  classify  the  various  questions  which  have  been  submitted 
to  your  consideration.  In  this  manner  it  will  be  possible  to  secure  a  general 
summary  of  the  debates  entered  in  different  places  in  the  minutes. 

I  must  further  state  that  as  soon  as  a  closer  examination  was  made  of  the 
ideas  arising  from  the  main  points  of  the  paragraph  mentioned  above,  there 
almost  always  arose  a  diversity  of  opinions  in  the  meeting  of  this  subcommission, 
which  diversity,  in  spite  of  the  obvious  good-will  prevailing,  made  it  impossible 
to  reach  conclusions  which  would  obtain  general  approval. 

As  you  will  notice,  gentlemen,  even  the  first  two  principal  terms  of  the 
second  paragraph,  that  is  to  say,  the  word  "  prohibition  "  and  the  designa- 
[16]  tion  "new  firearm,"  raised  many  doubts  among  the  delegates  as  to  the 
scope  of  the  definition. 

Following  an  exchange  of  views  it  was  agreed,  on  the  proposition  of  one  of 
the  delegates  (Mr.  Mahan)  to  accept  tentatively  this  still  very  vague  definition 
of  '*  new  firearm  "  as  a  general  expression,  in  order  that  a  decision  might  be 
reached  relating  to  all  kinds  of  firearms. 

On  the  other  hand,  the  simple  word  "  position "  gave  rise  to  very  well- 
warranted  remarks  in  the  subcommission  in  regard  to  the  scope  which  ought  to  be 
assigned  to  it.  Is  it  a  question  of  prohibiting  the  construction  of  any  warlike 
device,  or  is  this  prohibition  to  be  understood  as  meaning  that  the  importation  of 
a  new  arm  into  an  independent  country  is  to  be  forbidden?  In  the  former  case 
it  can  only  be  a  question  of  a  measure  of  internal  order  respecting  solely  the 
Government  of  the  country  in  which  the  inventor  or  manufacturer  of  the  device 
resides.  In  the  second  case,  the  prohibition  ought  always  to  be  considered  as  an 
assault  on  the  sovereignty  of  a  nation.  Even  a  limited  prohibition,  as  one  of  the 
delegates  was  pleased  to  remark,  would  remain  without  any  useful  consequence 
and  could  have  no  other  positive  result  than  the  temporary  suspension  of  a  highly 
developed  industry  which  now  keeps  considerable  capital  invested  and  thousands 
of  persons  employed. 

With  your  permission,  gentlemen,  I  should  like  to  revert  once  more  to  the 
subject  of  a  "  new  firearm,"  not  wishing  to  pass  over  in  silence  many  very  just 
and  remarkable  observations  made  by  several  delegates. 

One  of  the  delegates  (Mr.  Scheine)  having  said  that  in  his  opinion  the 
expression  "  new  firearm  "  ought  to  be  construed  as  meaning  an  "  entirely  new 
type,"  and   as  not   comprising  the  transformations   and  improvements   intro- 


THIRD  MEETING,  JUNE  22,  1899 :  ANNEXES  293 

duced  in  the  course  of  time,  several  delegates  (Messrs.  Mahan  and  Sakamoto) 
asked  whether  the  word  "  type  "  should  indicate  a  weapon  not  yet  invented.  The 
very  just  observation  was  made  (by  Mr.  Pephau)  that  the  definition  "an  entirely 
new  type  "  simply  lays  down  the  question  in  different  words.  What  should  be 
meant  by  a  new  type  ?  An  old  cannon  modified  and  improved  may  also  become  a 
new  type. 

From  a  practical  standpoint  the  expression  "  new  type  "  raised  the  remark 
(by  Sir  John  Fisher),  to  which  the  subcommission  agreed,  that  each  country 
wishes  to  use  the  best  weapon  it  can  procure  and  that  even  a  restriction  in  inven- 
tions and  constructions  of  new  types  of  warlike  devices  would  place  the  civilized 
peoples  in  a  disadvantageous  position  in  time  of  war  with  less  civilized  nations 
or  savage  tribes. 

The  delegate  from  Russia,  while  declaring  that  the  idea  of  a  prohibition  for 
an  indefinite  period  never  entered  the  mind  of  his  Government,  nevertheless 
thought  that  he  must  insist  on  his  proposition  to  assume  a  pledge  to  limit  the 
prohibition  for  a  certain  time,  say  three  or  four  years ;  as  it  is  not  very  probable 
that  arms  in  general  will  be  materially  modified  during  this  time,  the  means  will 
at  least  be  secured  in  this  manner  of  securing  a  point  of  departure  and  the 
question  of  placing  a  limit  on  inventions  and  constructions  would  be  more  clearly 
determined  and  assume  definite  shape. 

As  it  could  not  be  hoped  to  promptly  find  a  solution  of  this  question,  which 
constitutes  the  first  part  of  the  second  paragraph,  the  President  spoke  of  the 
necessity  of  considering  whether  this  proposition  to  provide  for  a  limitation  for 
a  certain  period  yet  to  be  determined  would  not  put  an  end  to  the  ruinous  competi- 
tion between  the  nations. 

What  would  be  most  effectual,  if  it  could  be  done,  would  be  to  adopt  penal 
provisions  against  the  inventors  of  nevv^  destructive  devices. 

It  will  be  frankly  admitted  that  the  observations  of  the  president  deserve 
every  consideration  by  reason  of  the  purpose  which  actuates  them.  However, 
taking  into  account  the  remarks  made  to  the  effect  that  it  will  never  be  possible  to 
prevent  inventors  from  ruining  nations  (Admiral  Pephau)  and  that  moreover 
these  inventions  serve  rather  to  hinder  and  retard  war  (Admiral  Fisher),  and 
finally  that  the  establishment  of  a  committee  of  control,  as  might  be  proposed, 
would,  while  constituting  an  attack  on  the  sovereignty  of  a  nation,  render  only 
very  insignificant  services  (Messrs.  Pephau,  Fisher,  Siegel,  and  Soltyk), 
the  subcommission,  after  a  thorough  exchange  of  views,  adopted  the  well- 
founded  resolution  that  it  should  reserve  its  decision  on  this  highly  important 
question.  On  the  proposition  of  the  President,  it  invited  the  delegate  of  the 
Imperial  Russian  Navy  (Mr.  Scheine)  to  kindly  endeavor  to  set  forth  once 
more  the  prevailing  opinion  of  his  Government  on  this  first  part  of  the  second 
paragraph. 

Upon  this  request,  Mr.  Scheine  declared  his  willingness  to  endeavor  to 
state  his  ideas  more  exactly. 

For  this  purpose  Mr.  Scheine  stated  that  the  expression  "  new  type  "  might 

be  determined  by  means  of  the  following  proposition:  he  recalls  the  three 

[17]  great  transformations  which  cannon  have  undergone:  The  transition  from 

the  smooth  bore  to  the  rifled  type,  then  the  change  from  muzzle  loaders 

to  breech  loaders,  and  finally  the  introduction  of  rapid  fire  guns. 

In  regard  to  naval  ordnance,  he  says  that  it  may  be  subdivided  into  three 
parts  comprising, 


294  FIRST  COMMISSION 

1.  Small  rapid  fire  guns  or  those  of  a  caliber  below  120  mm.  and  revolving 
cannon ; 

2.  The  great  bulk  of  guns,  comprising  rapid  fire  types  from  120  to  200 
mm.  in  diameter,  and  ordinary  big  guns  up  to  430  mm. ; 

3.  Landing  guns. 

Mr.  ScHEiNE  is  furthermore  of  opinion  that  only  cannon  of  modern  type 
should  be  considered,  leaving  out  of  consideration  the  first  group,  which  is 
without  importance  from  the  standpoint  of  relieving  budgets,  and  the  third  as 
entering  rather  into  the  domain  of  land  warfare. 

Pursuing  thus  this  analytical  method,  the  second  group  may  be  further 
subdivided  into  two  classes,  namely: 

a.    Ordinary  cannon  of  17  to  43.17  cm.  and 

h.    Rapid  fire  guns  from  12  to  20  cm. 

Besides  this  classification  of  systems  of  cannon,  the  delegate  from  the  Russian 
Navy,  in  order  to  define  his  intentions  the  more  effectively,  asks  the  members  of 
the  subcommission  to  permit  him  to  determine  by  means  of  figures  the  condi- 
tions under  which  the  nations  would  be  invited  to  pass  on  the  main  point  of  the 
proposition  of  the  Imperial  Government,  that  is,  to  unanimously  accept  a  period 
of  time  to  be  fixed  subsequently  and  during  which  the  obligation  will  be  assumed 
not  to  exceed  the  conditions  agreed  upon  and  enumerated  below : 

1.  Limitation  of  the  diameter  of  the  caliber  to  43  cm. ; 

2.  Acceptance  of  a  maximum  cannon  length  of  45  calibers; 

3.  Fixing  the  initial  velocity  of  existing  powders  at  a  maximum  of  3000 
feet  or  914  meters; 

4.  Final  determination  of  the  thickness  of  armor  plate  at  35j^  cm.  taking  as 
a  model  the  last  type  of  this  kind  from  the  Krupp  firm. 

In  concluding  his  statement,  Mr.  Scheine  further  adds  that  this  proposed 
measure  would  not  redound  to  the  detriment  either  of  nations  whose  ordnance 
is  now  undergoing  transformation,  or  of  lower  rate  navies,  which  might  during 
this  period  of  time  (3  to  5  years)  come  up  to  their  complete  armament.  It  will, 
of  course,  be  the  privilege  of  each  Government  to  determine  the  beginning  and 
end  of  this  prohibitory  period. 

Most  of  the  delegates  of  this  subcommission,  while  manifesting  keen  inter- 
est in  all  these  propositions,  were  nevertheless  obliged  to  take  them  merely  ad 
referendum  in  order  to  transmit  them  in  due  time  to  their  Governments. 

Following  the  observations  made  by  the  President,  as  also  by  several  dele- 
gates (Messrs.  Siegel,  Mahan,  Soltyk,  Bille,  Tadema  and  Turkhan 
Pasha),  concerning  both  the  question  of  armor  plate  and  that  of  fixing  the 
various  calibers  at  slightly  increased  figures.  Admiral  Pephau  thinks  it  w.ould 
te  proper  to  sanction  the  principle  in  general  terms  without  entering  into 
details;  he  makes  the  following  proposition,  which  is  accepted  in  principle  by 
the  delegates: 

The  contracting  nations  undertake  during  a  period  of starting 

from not  to  subject  the  existing  types  of  cannon  to  a  radical 

transformation  similar  to  that  of  the  muzzle  loader  which  was  replaced  by 
the  breech  loader. 

At  all  events  the  calibers  in  use  should  not  be  increased. 

The  delegates  declare  their  readiness  to  submit  the  two  parts  of  this  proposi- 
tion to  the  approval  of  their  respective  Governments.    This  motion  on  the  part 


THIRD  MEETING,  JUNE  22,  1899:  ANNEXES  295 

of  the  French  delegate  called  forth  an  exchange  of  views  the  result  of  which 
was  that  a  majority  of  the  delegates,  while  expressing  doubts  as  to  the  competency 
of  the  subcommission  to  decide  this  question,  did  not  believe  that  the  Governments 
would  be  disposed  to  restrict  inventions,  notably  as  regards  the  improvement  of 
armor  plate  (Mr.  Mahan). 

The  opinion  prevails  that  the  proposition  of  Mr.  Pephau  is  not  acceptable 
unless  it  contains  a  restriction  on  armor  plates. 

It  appears  from  the  discussion  of  the  motion  presented  by  Mr.  Scheine  at 
the  meeting  of  June  5  that  most  of  the  delegates  are  not  entirely  certain  as  to 
the  exactness  of  the  correlation  between  the  various  figures  set  forth  and  that  in 
their  opinion  it  would  not  be  sufficient,  in  limiting  the  initial  velocity,  to  maintain 
silence  regarding  the  weight  and  length  of  projectiles,  while  at  the  same  time 
setting  a  maximum  of  resistance  for  armor  plate. 

Inasmuch,  therefore,  as  it  will  be  unable  to  obtain  a  solution  until  a  technical 

examination  has  been  made  in  each  country,  the  subcommission  decides  to 

[18]  postpone  the  discussion  until  a  later  period,  in  order  to  await  the  decisions 

of  the  respective  Governments,  which  the  delegates  have  pledged  themselves 

to  ask  for. 

The  delegates  of  the  small  navies,  in  accordance  with  the  instructions  from 
their  Governments,  point  out  that  it  will  be  necessary  at  all  events  to  allow  them 
to  improve  their  armament  in  order  to  reach  the  level  of  the  great  maritime 
Powers,  and  that  these  small  nations  are  the  very  ones  which,  being  obliged  to 
seek  strength  in  the  quality  of  their  equipment,  can  not  easily  submit  to  restric- 
tions in  regard  to  new  inventions.  As  regards  wars  with  savage  peoples  (Sir 
John  Fisher),  these  restrictions  will  be  solely  to  the  detriment  of  civilized 
nations. 

Finally,  it  is  shown  that  in  accordance  with  the  instructions  of  the  Govern- 
ments, the  first  part  of  the  Pephau  motion  was  considered  inacceptable  by 
Germany,  the  United  States  of  America,  Austria-Hungary,  Great  Britain,  Italy 
and  Turkey;  but  adopted  by  Denmark,  Spain,  Japan  (under  special  conditions), 
the  Netherlands,  Portugal,  Roumania,  Russia  and  Siam. 

The  Government  of  Sweden  and  Norway  abstained. 

The  president,  Mr.  van  Karnebeek,  defined  the  scope  of  the  second  part 
of  the  Pephau  proposition  as  follows :  '*  that  it  relates  to  the  calibers  used  at 
present  by  practically  all  navies,"  and  he  invited  the  delegates  to  inquire  as  soon 
as  possible  of  their  Governments  whether  they  consider  this  second  part  acceptable. 

It  appears  from  the  various  opinions  expressed  in  regard  to  this  motion  that 
the  delegates  from  Austria-Hungary,  Sweden  and  Norway,  Japan,  the  Nether- 
lands, and  Siam  accept  it  under  reservation  ad  referendum,  and  on  the  express 
condition  that  this  proposed  limitation  shall  be  unanimously  adopted. 

The  delegates  from  United  States  of  America  and  Italy  consider  that  the 
pledge  can  not  be  accepted. 

The  delegate  from  Germany  is  also  of  opinion  that  this  proposition  implies  a 
limitation  of  armor  plates. 

Passing  on  to  the  second  part  of  the  second  paragraph,  the  delegate  from 
the  Imperial  Russian  Navy  (Mr.  Scheine),  at  the  invitation  of  the  president, 
sets  forth  the  views  of  his  Government  on  the  proposition  to  forbid  the  use  of 
new  kinds  of  explosives  which  may  be  invented.  It  is  a  question,  he  says,  (with- 
out speaking  of  initial  velocities,  of  which  it  was  a  question  before),  of  pro- 
hibiting the  use  of  projectiles  which  spread  asphyxiating  and  deleterious  gases; 


296  FIRST  COMMISSION 

as  the  task  of  the  Conference  is  to  limit  the  means  of  destruction,  it  seems  logical 
to  prohibit  the  employment  of  devices  such  as  those  in  question. 

In  his  personal  opinion,  the  use  of  these  asphyxiating  gases  may  be  con- 
sidered barbarous  and  equivalent  to  the  poisoning  of  a  river. 

The  President  upon  opening  up  the  discussion  on  this  chapter,  characterized 
the  poisoning  of  waters  as  an  act  of  treachery  and  cowardice. 

The  delegate  from  Siam  (Mr.  Rolin)  remarks  that  this  question  of  pro- 
jectiles spreading  asphyxiating  and  deleterious  gases  is  to  be  submitted  also  to 
the  deliberations  of  the  first  subcommission.  It  appears  from  the  opinions 
expressed  by  the  delegates  that  the  representatives  of  the  navies  of  France,  Great 
Britain,  Austria-Hungary,  Japan,  Sweden  and  Norway,  the  Netherlands,  Den- 
mark, Italy  and  Germany,  are  of  opinion  that  their  Governments — provided 
always  that  there  be  unanimity — would  accept  the  proposition  to  prohibit  the  use 
of  projectiles  for  the  sole  purpose  of  spreading  asphyxiating  gases. 

The  delegate  from  the  United  States  of  America  (Mr.  Mahan)  answers 
"  No,"  adding  that  in  his  opinion  the  objection  that  a  war-like  device  is  barbarous 
has  always  been  made  against  all  new  weapons,  which  were  nevertheless  event- 
ually adopted. 

In  the  Middle  Ages  firearms  were  criticized  as  being  cruel,  and  later  on 
mortars  and  still  more  recently  torpedoes  received  the  same  accusation.  In  his 
opinion  it  does  not  seem  demonstrated  that  projectiles  containing  asphyxiating 
gases  would  be  an  inhuman  or  cruel  device  without  being  decisive. 

While  he  is  the  representative  of  a  country  which  cherishes  a  keen  desire  to 
render  warfare  more  humane,  he  also  represents  a  nation  which  may  be  compelled 
to  wage  war,  and  it  is  therefore  a  question  of  not  depriving  oneself,  by  means 
of  resolutions  hastily  reached,  of  means  which  later  on  might  be  usefully 
employed. 

The  result  is,  therefore,  according  to  the  votes  taken,  that  14  representatives 
admitted — provided  always  there  be  unanimity — the  possibility  of  prohibiting 
this  character  of  projectiles  containing  asphyxiating  gases.  The  delegate  from 
the  United  States  answered  in  the  negative,  while  the  representative  of  Siam 
declared  that  he  would  take  note  of  the  proposition  only  ad  referendum. 

Passing  on,  finally,  to  the  final  paragraph  of  the  circular  note  of  December 
[19]  30,  1898,  the  principal  points  of  which  are  the  proposition  to  prohibit  the 
employment  of  submarine  or  immersible  torpedo  boats  and  the  invitation 
not  to  construct  any  war  vessels  with  rams  in  future,  it  is  my  duty  to  state  here 
that  the  observation  made  by  the  president  to  the  effect  that  the  use  of  submarine 
torpedo  boats  by  a  nation  ought  to  be  declared  sufficient  in  order  that  all  the  other 
nations  might  make  free  use  thereof,  greatly  facilitated  the  general  discussion  on 
this  chapter. 

After  an  exchange  of  personal  opinions  on  the  questions  of  submarine 
torpedo  boats,  which  enabled  several  delegates  (Messrs.  Siegel,  Soltyk,  Bille, 
Pephau,  Sir  John  Fisher,  Sakamoto,  Tadema,  Hjulhammar,  and  Mehemed 
Pasha)  to  formulate  very  clear  and  precise  ideas  regarding  the  future  of  this 
weapon,  it  is  shown  that,  according  to  the  declarations  made  by  the  majority 
of  the  delegates,  a  prohibition  of  the  boats  in  question  must  be  considered  as 
very  unlikely,  at  least  for  the  time  being. 

Taking  up  the  following  question,  which  relates  to  the  use  of  rams  on  war 
vessels,  the  President  wishes  to  state,  first,  that  it  is  a  qtiestion  of  a  prohibition 
which  would  not  extend  to  existing  vessels,  or  to  those  under  construction,  and 


THIRD  MEETING,  JUNE  22,  1899:  ANNEXES  297 

that,  moreover,  by  the  designation  "  vessel  with  a  ram,"  should  not  be  understood 
a  war  vessel  possessing  a  reinforced  stem. 

The  representative  of  the  Russian  Government,  Mr.  Scheine,  who  was 
not  instructed  to  formulate  any  propositions  on  the  question  put  to  a  vote,  intends 
to  ask  for  instructions;  he  is  nevertheless  convinced  that  his  Government,  in 
placing  this  question  on  the  program,  rather  had  it  in  mind  to  ascertain  the 
opinions  of  the  different  Governments. 

It  is  shown  from  the  opinions  expressed  by  the  delegates,  Messrs.  Siegel, 
Mahan,  Soltyk,  Pephau,  Sir  John  Fisher,  and  Sakamoto,  that  the  pro- 
hibition (even  under  reservation  as  regards  unanimity)  could  not  go  into  force 
until  after  the  expiration  of  a  certain  period  before  which  it  would  be  necessary 
to  allow  the  Governments  the  necessary  time  to  finish  the  vessels  already  under 
construction. 

It  would,  moreover,  be  very  desirable  to  exclude  likewise  from  this  prohibi- 
tion all  vessels  already  projected  in  accordance  with  a  determined  plan  of 
organization.  With  these  restrictions  the  proposition  to  prohibit  vessels  with 
a  ram  secured  the  consent  of  the  majority  of  the  delegates  on  condition  that  the 
consent  should  be  unanimous. 

However,  this  unanimity  was  lacking  because  the  delegates  from  Germany, 
Austria-Hungary,  Denmark  and  Sweden  and  Norway  were  unable  to  join  in  it. 

The  delegate  of  the  Imperial  Russian  Government  having  expressed  his 
intention  at  one  of  the  recent  meetings  to  submit  to  the  subcommission  two  new 
propositions,  one  looking  toward  the  possibility  of  a  compulsory  admission  of 
naval  attaches  on  board  the  vessels  of  the  belligerent,  treating  them  on  the  same 
footing  as  military  attaches  already  admitted  in  the  general  headquarters  of  land 
armies,  and  the  other  having  rather  a  humane  purpose  in  view,  that  is  to  say, 
the  possibility  of  finding  effective  means  for  covering  the  rams  of  war  vessels 
in  time  of  peace  in  order  thus  to  diminish  the  disastrous  consequences  of  col- 
lisions, the  said  subcommission  declared  that  it  was  incompetent  to  reach  any 
decision  in  this  regard.  It  based  its  unanimous  opinion  on  the  fact  that,  with 
respect  to  the  first  proposition,  the  settlement  of  such  a  question  ought  to  be 
reserved  solely  for  an  agreement  between  the  neutral  nation  and  one  of  the 
belligerents  and  that  with  regard  to  the  second  it  ought  to  be  submitted  to  a  special 
technical  committee. 

Thanking  you,  gentlemen,  once  more  for  the  indulgence  which  you  have 
kindly  shown  me,  I  propose  to  you  to  present,  on  behalf  of  the  subcommission, 
our  special  thanks  to  the  president  for  the  irrfpartial  and  competent  manner  in 
which  he  has  directed  our  labors. 

We  also  owe  an  expression  of  thanks  to  the  members  of  the  general  secre- 
tariat for  their  devoted  collaboration. 

Count  Soltyk. 


FOURTH  MEETING 

JUNE  23,   1899 


His  Excellency  Mr.  Beernaert  presiding. 

The  minutes  of  the  meeting  of  June  22  are  read  and  approved  without 
modification. 

The  President  thanks  the  secretariat  for  the  promptness  with  which  it  has 
reported  the  minutes  in  such  complete  form.     (Approval.) 

The  Delegate  of  Siam  asks  that  the  declaration  read  by  Sir  John  Ardagh 
[20]  in  the  preceding  meeting  relative  to  dumdum  bullets  be  printed. 

General  Sir  John  Ardagh  says  that  he  too  attaches  the  greatest  importance 
to  having  the  public  appreciate  the  force  of  the  argument  that  he  has  advanced 
in  favor  of  the  harmlessness  of  the  dumdum  bullets. 

The  President  states  that  there  is  no  objection  to  printing  the  declaration 
made  by  the  English  delegate. 

It  will  take  place. 

Mr.  Raffalovich  believes  that  in  order  to  be  impartial,  it  would  be  necessary 
to  place  the  entire  record  before  the  eyes  of  the  public.  He  asks  therefore  that 
not  only  the  declaration  of  Sir  John  Ardagh,  but  also  the  opposite  arguments, 
be  printed. 

Captain  Crozier  asks  that  the  text  of  the  proposition  that  he  has  formulated 
be  inserted  in  the  summary  proceedings. 

On  the  motion  of  Colonel  Gilinsky  it  is  decided  that  all  that  part  of  the 
minutes  of  the  meeting  of  June  22  relative  to  bullets  shall  be  printed  in  full. 

General  Sir  John  Ardagh  says  that  after  the  decision  which  has  just  been 
taken  there  is  no  need  for  insisting  on  a  correction  of  the  summary  proceedings, 
where  perhaps  too  much  space  has  been  given  to  the  observations  presented  by 
Colonel  Gross  von  Schwarzhoff  relative  to  the  non-existence  of  a  factory 
of  arms  at  Tubingen;  it  is  certainly  not  in  the  words  of  Sir  John  Ardagh  that 
Colonel  Gross  von  Schwarzhoff  has  been  able  to  find  any  basis  for  the 
remarks  he  made. 

Colonel  Gross  von  Schwarzhoff  answers  that  indeed  he  had  at  no  time 
the  idea  of  addressing  Sir  John  Ardagh  ;  but  that,  as  German  bullets  were 
spoken  of  as  German  dumdums,  both  in  this  high  assembly  and  in  the  papers,  he 
believed  that  he  was  obliged  to  protest  at  the  outset  against  a  fiction  about  to  be 
created. 

The  President  says  that  the  full  reproduction  of  the  minutes  will  give  entire 
satisfaction  to  Sir  John  Ardagh  and  Mr.  Gross  von  Schwarzhoff. 

The  President  asks  the  assembly  to  pass  to  the  discussion  of  the  part  of  the 
report  of  Count  Soltyk  relative  to  prohibition  of  submarine  or  diving  torpedo 
boats  and  the  construction  in  the  future  of  war  vessels  with  rams.  There  was  no 
vote  on  these  two  questions  in  the  subcommission,  and  it  is  for  the  Commission 
to  decide  them. 

298 


FOURTH  MEETING,  JUNE  23,  1899  299 

No  one  having  asked  the  floor,  the  prohibition  of  submarine  or  diving 
torpedo-boats  is  put  to  vote. 

Five  States :  Belgium,  Greece,  Persia,  Siam  and  Bulgaria,  vote  for  the 
prohibition  with  reservation ;  five  States :  Germany,  Italy,  Great  Britain,  Japan 
and  Roumania,  vote  for  prohibition  under  the  reservation  of  unanimity;  nine 
States :  the  United  States  of  America,  Austria-Hungary,  Denmark,  Spain,  France, 
Portugal,  Sweden  and  Norway,  Netherlands  and  Turkey,  vote  in  the  negative. 

Russia,  Serbia  and  Switzerland  abstain  from  voting. 

The  President  puts  to  a  vote  the  conventional  prohibition  against  construct- 
ing war  vessels  with  rams.  He  remarks  that  this  prohibition  does  not  con- 
template ships  with  reinforced  stems. 

Four  States :  France,  Greece,  Siam  and  Bulgaria,  adopted  the  prohibition. 

Seven  States :  the  United  States  of  America,  Great  Britain,  Italy,  Japan, 
Persia,  Netherlands  and  Roumania,  adopted  it  under  the  reservation  of  unanimity. 

Seven  States  rejected  it:  Germany,  Austria-Hungary,  Denmark,  Spain, 
Portugal,  Sweden  and  Norway,  and  Turkey. 

Four  States  abstained  from  voting :  Belgium,  Russia,  Serbia  and  Switzerland. 

The  President  recalls  that  there  was  represented  to  the  subcommission  the 
suitableness  of  seeking  means  to  cover  the  rams  of  war  vessels  in  time  of  peace 
in  such  a  manner  as  to  lessen  the  disastrous  consequences  of  collisions  but  that 
the  subcommission  thought  it  was  without  jurisdiction,  the  question  having  to 
be  abandoned  to  the  domestic  law  of  each  State. 

The  President  asks  if  it  is  wished  to  reopen  this  discussion  in  the  full  meet- 
ing ;  but  nobody  asks  the  floor. 

The  President  conveys  the  thanks  of  the  Commission  to  General  den  Beer 
PooRTUGAEL  and  to  Count  Soltyk  who  have  so  ably  accomplished  the  delicate 
and  complicated  task  that  the  subcommissions  had  entrusted  to  them. 

The  Commission  passes  to  the  examination  of  the  first  subject  in  the  circular 

of  Count  MOURAVIEFF. 

His  Excellency  Mr.  Beernaert  sets  forth  the  importance  of  the  discussion 
which  is  about  to  open,  in  these  words : 

We  have  now  reached  the  serious  problem  which  the  Russian  Government 
first  raised  in  terms  which  immediately  compelled  the  attention  of  the  world. 

Faithful  to  the  traditions  of  his  predecessors,  and  notably  of  Alexander  I, 
[21]  who,  in  1816,  attempted  to  found  eternal  peace  through  disarmament,  Czar 
Nicholas  asks  a  reduction  of  military  expenses,  or  at  least  a  limitation  of 
their  increase.    He  does  this  in  terms  the  gravity  of  which  can  hardly  be  exag- 
gerated. 

For  once  it  is  a  great  sovereign  who  thinks  that  the  enormous  charges  which, 
since  1871,  have  resulted  from  the  state  of  armed  peace  now  seen  in  Europe  are 
of  a  nature  to  undermine  and  paralyse  public  prosperity  in  their  source,  and  that 
their  ever-increasing  progress  upward  will  produce  a  crushing  burden  which  the 
peoples  will  carry  with  greater  and  greater  difficulty.  It  is  for  this  evil  that  he 
wishes  Europe  to  find  a  remedy. 

The  circular  of  Count  Mouravieff  defines  the  problem  with  greater  pre- 
cision in  presenting  it  under  this  double  aspect :  what  are  the  means  of  setting  a 
limit  to  the  progressive  increase  of  armaments?  Can  the  nations  agree  by  com- 
mon accord  not  to  increase  them  or  even  to  reduce  them? 

But  it  is  for  me  rather  to  indicate  the  aim  than  to  outline  a  solution,  and  I 
think  that  this  latter  should  be  formulated  distinctly. 


300  FIRST  COMMISSION 

The  subject  is  difficult,  and  it  would  be  impossible  to  exaggerate  its  impor- 
tance, for  the  question  of  armed  peace  is  not  only  bound  closely  with  that  of 
public  wealth  and  the  highest  form  of  progress,  but  also  with  that  of  social 
peace.  This  is  one  more  reason  why  we  should  give  clear  and  formal  bases  to 
our  discussion.  Thus,  for  example,  should  the  engagement  provide  for  the 
number  of  effective  forces  or  for  the  amount  of  the  budgets  of  military  expenses, 
or  at  the  same  time  for  both? 

How  should  the  figures  be  fixed  and  verified? 

Should  the  armies  of  to-day  be  taken  as  a  point  of  departure  ?  Should  some 
last  complement  be  admitted  or  should  some  other  proportion  be  decided  on? 
Should  naval  forces  be  dealt  with  the  same  as  armies?  What  should  be  done 
with  colonial  defenses? 

I  hope  that  our  eminent  president,  his  Excellency  Mr.  Staal,  who  will  now 
address  us,  will  enlighten  us  on  these  different  points. 

His  Excellency  Mr.  Staal  delivered  the  following  address : 

Mr.  President:  I  would  like  to  add  some  words  to  the  eloquent  remarks 
which  you  have  just  made ;  I  should  like  to  state  precisely  the  thought  by  which 
the  Russian  Government  is  inspired  and  to  indicate  at  the  same  time  the  stages 
through  which  the  question  now  before  us  has  passed. 

Since  the  month  of  August,  1898,  the  Russian  Government  has  invited 
the  Powers  to  seek,  by  the  aid  of  international  discussion,  the  most  effica- 
cious means  of  setting  a  limit  to  the  progressive  development  of  the  present 
armaments. 

A  cordial  and  sympathetic  welcome  was  given  to  the  request  of  the  Imperial 
Government  by  all  the  Powers  that  are  represented  here.  At  the  same  time, 
notwithstanding  the  enthusiasm  with  which  this  proposal  was  received,  the 
Russian  Government  considered  it  necessary  to  obtain  information  from  the 
Cabinets  in  order  to  decide  whether  the  present  time  seemed  favorable  for  the 
convocation  of  a  conference  of  which  the  first  object  would  properly  be  this 
restriction  of  armament. 

The  responses  which  are  given  us,  the  acceptance  of  the  program  sketched  in 
the  circular  of  December  30,  1898,  and  in  which  the  first  point  looks  to  the  non- 
augmentation  for  a  fixed  term  of  the  existing  armies,  led  us  to  take  the  initiative 
in  the  Peace  Conference.  It  is  thus,  gentlemen,  that  we  find  ourselves  assembled 
at  The  Hague,  animated  by  a  spirit  of  conciliation,  and  that  our  good-will  is  met 
by  a  common  work  to  be  accomplished. 

Our  two  subcommissions  have  taken  up  points  2,  3,  and  4  of  the  circular  of 
December  30.  These  are,  without  doubt,  technical  and  special  difficulties,  whose 
importance  I  am  not  in  a  position  to  appreciate,  and  which  have  prevented  our 
reaching  all  the  decisions  desired.  The  Commission  besides  has  expressed  the 
wish  to  refer  some  of  these  questions  to  a  later  Conference. 

Let  us  examine  the  essential  point  which  has  been  referred  to  this  Commis- 
sion; it  is  the  question  of  the  limitation  of  budgets  and  of  actual  armaments. 
It  seems  to  me  indispensably  necessary  to  insist  that  this  important  question  should 
be  made  the  subject  of  a  most  profound  study,  constituting,  as  it  does,  the  first 
purpose  for  which  we  are  here  united,  that  of  alleviating,  as  far  as  possible,  the 
dreadful  burden  which  weighs  upon  the  peoples,  and  which  hinders  their  material 
and  even  moral  development.  The  forces  of  human  activity  are  absorbed  in  an 
increasing  proportion  by  the  expenses  of  the  military  and  naval  budgets.  As 
General  den  Beer  Poortugael  has  said  so  eloquently,  it  is  the  most  important 


FOURTH  MEETING,  JUNE  23.  1899  301 

functions  of  civilized  Governments  which  are  paralyzed  by  this  state  of  affairs, 
and  which  are  thus  relegated  to  the  second  place. 

Armed  peace  to-day  causes  more  considerable  expense  than  the  most  burden- 
[22]  some  war  of  former  times.  If  one  of  our  great  Commissions  has  been 
charged  with  the  duty  of  alleviating  or  mitigating  the  horrors  of  war,  it 
is  to  you,  gentlemen,  that  the  equally  grand  task  has  been  assigned  to  alleviate  the 
burdens  of  peace,  especially  those  which  result  from  incessant  competition  in  the 
way  of  armaments. 

I  may  be  permitted  to  hope  that  on  this  point,  at  least,  the  desires  of  anxious 
populations  who  are  following  our  labors  with  a  constant  interest  shall  not  be 
balked.    The  disappointment  would  be  cruel. 

It  is  for  this  reason  that  I  ask  you  to  give  all  of  your  attention  to  the  propo- 
sition which  the  technical  delegates  of  Russia  will  present  to  you.  You  will  see 
that  these  propositions  constitute  in  very  truth  a  minimum. 

Is  it  necessary  for  me  to  declare  that  we  are  not  speaking  of  Utopias  or 
chimerical  measures?  We  are  not  considering  disarmament.  What  we  are 
hoping  for,  is  to  attain  a  limitation — a  halt  in  the  ascending  course  of  armaments 
and  expenses.  We  propose  this  with  the  conviction  that  if  such  an  agreement  is 
established,  progress  in  other  directions  will  be  made — slowly  perhaps,  but  surely. 
Immobility  is  an  impossibility  in  history,  and  if  we  shall  only  be  able  for  some 
years  to  provide  tor  a  certain  stability,  everything  points  to  the  belief  that  a 
tendency  toward  a  diminution  of  military  charges  will  be  able  to  grow  and  to 
develop.  Such  a  moverrusnt  would  correspond  entirely  to  the  ideas  which  have 
inspired  the  Russian  circulars. 

But  we  have  not  yet  attained  to  this  point.  For  the  moment  we  aspire  to  the 
attainment  of  stability  for  a  fixed  limitation  of  the  number  of  effectives  and  of 
military  budgets. 

General  den  Beer  Poortugael,  delegate  of  the  Netherlands,  takes  the  floor 
and  speaks  as  follows: 

We  now  have  before  us  the  first  subject  of  the  circular  of  Count  Mouravieff, 
which  has  been  reserved  as  the  most  difficult  question  but  also  the  most  important 
one  to  solve.  It  certainly  deserves  that  all  our  faculties  be  concentrated  in  one 
supreme  effort.  It  is  necessary  for  us  to  take  into  account  the  great  interests  of 
the  peoples  affected,  and  I  think  I  am  not  going  too  far  in  saying  that  the  question 
should  be  entered  upon  by  us  with  a  certain  deference. 

For  a  quarter  of  a  century — you  know  it,  gentlemen,  better  than  I — the 
effective  land  and  sea  forces  and,  consequently,  the  war  budgets  of  all  European 
nations  have  only  increased  from  year  to  year.  They  have  at  present  reached  pro- 
portions that  are  gigantic,  disquieting,  and  dangerous.  Four  million  men  under 
arms  with  the  total  yearly  military  budget  of  five  billion  francs !  Is  it  not 
frightful  ? 

I  know  well  that  these  soldiers  are  kept  under  arms  only  to  maintain  peace ; 
sovereigns  have  in  view  only  the  safety  of  the  people  they  govern ;  States  sincerely 
believe  that  all  this  outfit,  these  armed  forces,  are  necessary  for  their  preservation. 

But  they  are  mistaken.  It  is  towards  their  inevitable  loss,  their  own  destruc- 
tion slow  but  sure,  that  they  are  working  when  they  continue  in  this  way. 

Please  understand  me.  I  am  far  from  being  a  Utopian.  I  do  not  believe  in 
an  eternal  peace,  I  even  think  that  the  wars  can  in  exceptional  cases  be  inevitable 
and  salutary,  by  purifying,  like  a  storm,  the  political  atmosphere,  and  by  freeing 
us  from  several  meannesses  that  materialism  and  love  of  money  foster. 


302  FIRST  COMMISSION 

It  is  impossible,  then,  to  get  along  without  armies  and  navies,  but  there  is 
no  need  to  exaggerate ;  there  are  limits  to  everything,  and  we  have  already  passed 
them  a  long  time  ago. 

If  I  have  said  that  the  States  are  hastening  inevitably  to  their  ruin  it  is  be- 
cause, the  more  their  armed  forces  increase,  military  budgets  swallow  billions, 
peoples  are  crushed  under  the  weight  of  taxes,  the  States  are  dragged  more  and 
more  over  the  steep  of  the  abyss  into  which  they  will  finally  perish;  they  are 
exhausting  and  ruining  themselves. 

This  exhaustion  may  become  so  great  that  at  the  supreme  moment,  when 
the  State  must  enter  the  lists  to  safeguard  its  honor  or  defend  its  independence, 
at  that  moment  the  sinews  of  war  (money)  will  be  wanting. 

This  ruin  is  beginning  with  the  poorest  States,  the  most  indebted  ones,  it 
will  end  by  attacking  the  others.  There  is  no  nation,  however  rich  it  may  be, 
which,  in  the  long  run,  can  avoid  it. 

In  truth,  this  incessant  increase  in  armies,  fleets,  budgets,  debts,  seems  to  be 
found  in  the  depths  of  the  box  of  Pandora  or  to  be  the  unlucky  gift  of  the  wicked 
fairy  who  desires  the  unhappiness  of  Europe.  Europe  seems  to  be  the  prey  of 
an  access  of  fever  in  which  each  wishes  to  surpass  his  neighbor;  each  one 
believes  that  he  is  obliged  to  follow,  if  another  recommences. 

From  this  precaution  to  guarantee  peace,  there  will  result  war. 
The  augmentation  of  eitective  forces  and  of  expenses  will  be  the  true  cause 
[23]  of  war;  pretexts  abound. 

How  avoid  this  fatal  destiny? 
Many  wishes  have  found  expression;  philosophers,  savants,  specialists  have 
suggested  their  schemes.    Everything  thus  far  tried  has  been  in  vain. 

But  now  is  heard  the  voice  of  one  of  the  great  on  earth,  that  of  the  powerful 
monarch  of  the  Russian  Empire.  Perceiving  all  the  miseries,  understanding  the 
mournful  consequences  that  these  continual  increases  must  lead  to,  the  august 
sovereign  has  made  an  appeal  to  the  friendship  and  conscience  of  the  nations;  he 
has  pointed  out  the  remedy,  that  is  to  say,  an  agreement  stipulating  only  non- 
augmentation,  for  a  limited  time,  of  the  present  effective  forces  and  military 
budgets. 

In  limiting  himself  to  the  status  quo,  in  not  asking  a  reduction  of  forces,  nor 
a  final  nor  partial  disarmament,  the  Emperor  seems  to  have  wished  to  disarm  the 
opposition  in  advance. 

I  know  all  the  difficulties  that  exist,  but  we  military  men  know,  too,  that 
there  is  none  that  is  insurmountable ;  we  have  always  learned  that  to  will  is  to  be 
able. 

To  our  Governments,  bound  together  by  the  cords  of  our  military  organiza- 
tions, like  Alpine  tourists,  the  Czar  has  said :  "  Let  us  make  a  united  effort,  let 
us  halt  on  this  edge  of  the  abyss,  if  not,  we  shall  perish !  " 

Let  us  halt !  Gentlemen,  it  is  for  us  to  make  this  supreme  effort ;  it  is  worth 
the  labor : 

Let  us  hoM  fast. 

General  Gilinsky  takes  the  floor  and  says : 

The  program  of  the  Russian  Government  has  in  view  two  objects: 
The  first  is  humanitarian ;  it  is  to  put  off  the  possibility  even  of  war  and  to 
diminish  as  much  as  possible  its  evils  and  calamities. 

The  second  is  founded  on  economic  considerations:  to  diminish  as  much  as 


FOURTH  MEETING,  JUNE  23,  1899  3O3 

possible  the  enormous  weight  of  pecuniary  charges  which  all  nations  find  them- 
selves obliged  to  bear  for  the  up-keep  of  armies  in  time  of  peace. 

With  regard  to  the  first  task,  the  Commissions  in  charge  of  the  questions  of 
arbitration,  good  offices,  the  laws  and  customs  of  war  on  land,  the  adaptation  to 
maritime  warfare  of  the  principles  of  the  Geneva  Convention,  are  now  engaged 
in  considering  them. 

I  hope  that  their  work  will  be  crowned  with  success,  but  it  is  allowable  to 
ask,  gentlemen:  Will  the  peoples  represented  in  this  Conference  be  entirely 
satisfied  if,  in  going  hence,  we  take  them  arbitration  and  laws  of  warfare,  but 
nothing  for  times  of  peace,  for  this  armed  peace  which  is  so  heavy  a  burden  on 
the  nations,  which  crushes  them  to  that  point  where  it  can  be  sometimes  said  that 
open  war  would  perhaps  be  better  than  this  state  of  secret  war,  this  incessant 
competition  in  which  all  the  world  pushes  forward  larger  and  larger  armies,  larger 
now  in  time  of  peace  than  they  used  to  be  in  time  of  greatest  warfare? 

The  various  countries  have  engaged  in  war  only  once  in  every  twenty  or 
thirty  years. 

But  this  armed  peace  lasts  for  decades,  precedes  war  and  follows  it;  it  is 
that  which  threatens  the  ruin  of  nations  by  the  enormous  size  of  the  armies  in 
times  of  peace,  the  continual  increase  of  effective  forces  and  the  frequent 
changes  in  armament. 

It  has  been  remarked  to  me,  that  although  armies  have  considerably  increased, 
populations  have  done  so  too,  and  therefore  the  rate  of  the  expenditures  bears  on 
a  greater  number  of  contributors.  But  is  it  not  true  that  armies  are  increas- 
ing out  of  proportion  with  the  increase  of  population,  that  life  has  become 
dearer  and  that  the  support  of  the  soldier  and  his  armament  is  to-day  much 
more  onerous? 

Indeed,  this  war  budget  at  the  present  time  swallows  a  great  part  of  the 
receipts  of  a  country  and  the  support  of  troops  in  times  of  peace  is  becoming  too 
heavy  a  burden.  I  have  heard  it  said,  too,  that  the  money  spent  for  making 
changes  in  armaments  stays  in  the  country.  This  is  perhaps  true  for  the  countries 
that  themselves  manufacture  their  cannon  and  guns;  for  other  nations  this 
money  goes  out  of  the  country. 

But,  even  for  countries  so  happily  situated,  is  it  a  real  advantage  for  the 
whole  population,  for  all  the  contributors,  even  though  in  spending  the  money 
for  manufacture  of  arms  they  may  console  themselves  with  the  fact  that  the 
money  stays  in  the  country?  So  be  it,  if  cash  is  paid.  But  suppose  in  order 
to  manufacture  the  new  arms  a  new  loan  is  made  even  in  the  interior  of  the 
country?  The  artisan  has  received  his  money,  the  workman  his  wages,  but  the 
operation  is  not  yet  finished  for  the  people,  the  debt  remains,  and  everybody, 
peasants  and  artisans,  workmen  and  property  holders  are  obliged  during  long 
years  to  pay  this  debt  until  its  liquidation,  to  pay  the  interest  on  it,  the 
[24]  total  of  which  exceeds  in  thirty  or  forty  years  the  amount  of  the  original 
debt.  No,  gentlemen,  when  we  look  into  this  question  frankly,  we  cannot 
deny  that  the  development  of  armaments  is  the  ruin  of  nations.  And  the  nations 
understand  it  well.  Accordingly,  numerous  proofs  of  sympathy  for  the  Peace 
Conference  and  cordial  wishes  have  been  addressed  by  the  peoples  of  different 
countries  to  the  august  initiator  of  this  Conference. 

Besides,  the  continual  increase  of  the  armed  forces  does  not  attain  its  end, 
for  the  ratio  between  the  forces  of  different  countries  always  remains  the  same. 
Some  Government  increases  its  troops  that  are  supported  in  time  of  peace,  or 


304  FIRST  COMMISSION 

forms  new  battalions;  its  neighbor  follows  immediately  its  example  and  rein- 
forces its  army  to  the  extent  necessary  to  preserve  the  ratio ;  the  neighbor  of  the 
neighbor  does  likewise,  and  so  on ;  the  effective  force  is  increased,  but  the  ratios 
between  the  forces  of  the  different  nations  always  remain  about  the  same. 

In  the  territorial  army,  in  reserve,  it  is  still  the  same.  Different  means  are 
employed;  some  diminish  the  number  of  years  that  the  soldier  is  kept  under  the 
flag,  others  increase  the  number  of  years  that  the  soldier  stays  in  reserve ;  but  it 
all  tends  to  the  same  end  and  brings  the  same  result :  the  ratio  between  the  armed 
forces  of  the  different  States  is  unaltered. 

Those  are  the  considerations  that  have  given  my  august  sovereign  and  the 
Russian  Government  the  idea  of  proposing  an  agreement,  having  in  view  to  put 
a  stop,  if  only  for  some  time,  to  the  rapid  increase  in  armaments. 

We  suggest  nothing  new.  Fixing  effective  forces  and  war  budgets  is  prac- 
tised in  some  countries  and  has  been  for  a  long  time. 

Thus,  in  Germany,  the  total  of  the  troops  in  time  of  peace  is  fixed  for  from 
five  to  seven  years.  In  Russia,  the  war  budget  is  also  fixed  for  five  years.  We 
are  dealing  then,  with  a  known  procedure,  which  has  been  practised  for  a  long 
time,  which  frightens  nobody  and  which  gives  good  results ;  we  may  adopt  them 
for  a  shorter  time  if  you  so  desire,  by  way  of  trial.  The  only  thing  new  here  is 
the  decision  and  the  courage  to  say  that  it  is  time  to  stop.  Russia  proposes  this  to 
you ;  she  invites  you  to  set  a  limit  to  the  further  increase  of  military  forces  at  a 
moment  when  she  herself  is  far  from'  having  attained  the  maximum  in  this 
■development,  for  we  Russians  do  not  call  upon  more  than  twenty-six  to  twenty- 
nine  and  one-half  per  cent  of  our  young  men  to  enter  the  ranks,  whereas  other 
States  require  as  great  a  percentage  or  even  more. 

There  is,  thus,  no  selfish  interest  in  the  Russian  proposal;  it  is  an  idea,  a 
•proposal  of  a  purely  humanitarian  kind  and  with  an  economic  feature  which  you 
-can  entertain  and  discuss  in  absolute  confidence. 

The  program  which  is  submitted  to  your  discussion  is  the  Russian  program. 
We  cannot  discuss  another  because  no  other  program  has  been  presented  by 
:the  Governments  which  have  accepted  the  invitation  to  the  Conference.  But 
-within  the  limits  of  the  Russian  program  every  proposal  of  another  country, 
facilitating  an  agreement,  would  certainly  be  welcome.  The  proposition  which  is 
-submitted  to  you  is  not  yet  a  formula  upon  which  it  only  remains  to  vote. 

The  circular  of  January  12  says  this  clearly:  it  is  one  of  the  subjects 
■"  submitted  to  international  discussion  in  the  Conference."  Therefore  we  have 
at  first  to  discuss  it,  to  hear  proposals  and  ideas  of  other  Governments  in  order 
to  find  later  a  formula  to  vote  upon.  We  are  not  speaking  here  absolutely  of 
diminishing  the  total  of  troops  that  at  present  exist,  but  merely  of  not  increasing 
it,  for  a  certain  time,  by  way  of  trial. 

There  is  no  question  of  putting  obstacles  before  Governments  in  the  matter 
■of  organizing  their  troops  or  of  preventing  the  creation  of  new  units  since  one 
can  organize  while  diminishing  the  effective  forces  of  the  existing  units  without 
increasing  the  total  of  the  troops.  I  again  repeat,  that  we  are  here  dealing  with 
not  increasing  the  total  number  of  the  troops  now  existing,  and  this  for  a  short 
time  and  by  way  of  trial  in  order  to  find  out  if  it  would  be  possible  later,  in  a 
subsequent  conference,  to  make  the  same  proposal  for  a  long  time. 

As  to  the  reduction  of  effective  forces,  I  beg  you,  gentlemen,  to  forget  com- 
T^letely  this  second  subject  during  the  discussion  of  the  first,  primarily,  because 
it  would  be  possible  to  discuss  it  only  in  case  an  agreement  should  be  had  on  the 


FOURTH  MEETING,  JUNE  23,  1899  305 

first  subject :  on  the  non-augmentation  during  a  certain  time  of  the  total  number  of 
troops  existing  to-day. 

And  even  in  this  case,  the  discussion  of  the  second  subject  in  this  Conference 
would  only  be  academical :  '*  preliminary  examination,"  as  the  circular  says,  "  of 
the  means  by  which  a  reduction  might  be  effected  in  future."  It  would,  then, 
only  be  an  exchange  of  ideas  which  would  serve  as  bases  for  the  Government  in 
studying  these  questions  destined  for  discussion,  perhaps,  in  a  later  Conference. 

For  the  present  Conference,  gentlemen,  we  find  ourselves  confronted  with 
[25]  questions  and  proposals  that  are  entirely  realizable  and  with  a  decision  that 
is  becoming  more  and  more  urgent. 

The  idea  of  the  Emperor  of  Russia  is  grand  and  generous.  Misunderstood 
at  first,  it  now  commands  the  approval  of  all  peoples;  for  the  people  have  at 
last  understood  that  this  idea  has  in  view  nothing  but  peace  and  prosperity  for 
all.  The  seed  has  fallen  into  fruitful  soil :  the  human  mind  is  aroused ;  it  is 
working  to  make  the  seed  germinate,  and  I  am  sure  that  it  will  soon  bear  beautiful 
fruit.  If  not  this  first  Conference,  then  a  later  Conference  will  accept  the  idea, 
for  it  responds  to  a  necessity,  to  the  want  of  nations.  We  are  the  first,  gentlemen, 
called  to  cultivate  this  idea,  to  solve  the  problem;  let  us  not  yield  this  honor  to- 
others, let  us  make  a  supreme  effort;  in  devoting  good-will  and  confidence  to  it, 
we  shall,  I  hope,  arrive  at  an  understanding  that  is  so  ardently  desired  by  all  the 
nations. 

The  Commission  decided  that  these  four  speeches  should  be  printed  in  the 
summary  proceedings. 

The  propositions  offered  by  Colonel  Gilinsky,  delegate  of  Russia,  respecting^ 
the  means  of  putting  a  limit  to  the  development  of  future  armaments,  are 
expressed  as  follows : 

1.  An  international  agreement  for  a  term  of  five  years,  stipulating  the  non- 
increase  of  the  present  number  of  troops  maintained  in  time  of  peace  in  each 
mother  country. 

2.  The  determination,  in  case  of  this  agreement,  if  it  is  possible,  of  the 
number  of  troops  to  be  maintained  in  time  of  peace  by  all  the  Powers,  not  includ- 
ing colonial  troops. 

3.  The  maintenance,  for  the  same  term  of  five  years,  of  the  size  of  the  mili- 
tary budgets  in  force  at  the  present  time. 

Colonel  Kiinzli  asks  the  assembly  to  refer  to  a  future  meeting  the  examina- 
tion of  the  important  propositions  that  Colonel  Gilinsky  has  just  formulated  in. 
the  name  of  the  Russian  Government. 

The  first  delegate  of  Persia,  General  Mirza  Riza  Khan,  Arfa-ud-Dovleh,. 
pronounces  the  following  discourse : 

During  the  Conference  so  many  and  such  eloquent  addresses  have  been; 
delivered  that  it  would  seem  venturesome  on  my  part  to  take  the  floor  in  a 
language  that  is  not  my  own. 

The  Russian  Government  having  done  Persia  the  honor  of  inviting  it  to- 
take  part  in  the  Peace  Conference  and  to  send  a  representative  thereto,  and  His 
Imperial  Majesty  the  Shah,  my  august  sovereign,  having  deigned  to  choose  me 
to  undertake  this  honorable  mission,  the  newspapers  in  Russia  and  in  Sweden, 
especially  those  of  St.  Petersburg  and  Stockholm  (to  both  of  which  countries  I 
am  accredited),  have  greeted  my  appointment  with  sympathetic  articles  and  the 
more  so  because  I  belong  so  little  to  the  world  of  letters.  As  to  the  journals  of 
my  own  country  they  have  expressed  the  warmest  sentiments. 


306  FIRST  COMMISSION 

All  these  marks  of  interest  impose  upon  me  the  duty  of  adding  also  on  my  side 
some  words  to  the  support  of  the  great  cause  which  is  that  of  all  humanity  and 
with  which  we  have  here  to  deal.  To  all  the  praises  of  which  the  humanitarian 
aim  of  the  circular  of  Count  Mouravieff  has  been  the  object,  I  can  add  nothing. 
But,  on  the  other  hand,  critics  have  arisen;  they  have  gone  to  the  length  of 
attributing  motives  of  selfishness  to  the  generous  initiative  of  which  the  circular 
is  the  result. 

Having  the  honor  of  personally  knowing  His  Majesty  Emperor  Nicholas 
n,  whose  noble  and  kind  sentiments  I  have  been  able  to  appreciate,  I  am  happy  to 
firmly  declare  here  that  all  the  proposals  of  the  Russian  Government  emanate 
from  the  magnanimous  heart  of  its  sovereign.  It  is  without  flattery  or  reserva- 
tion that  I  make  this  declaration.  Permit  me,  gentlemen,  to  cite  to  you  a  proof  of 
his  noble  and  elevated  sentiments. 

In  the  first  year  after  my  appointment  to  the  post  of  representative  of 
Persia  at  the  Russian  Court,  I  was  accompanying  on  my  horse  the  Emperor 
who  was  going  from  the  Winter  Palace  to  the  Field  of  Mars  to  be  present  at 
the  review  which  took  place  on  the  eve  of  the  departure  of  the  Emperor  for 
Moscow,  where  he  was  going  to  be  crowned.  As  I  was  somewhat  ill  that  day, 
I  fainted  and  slipped  from  my  horse. 

The  Emperor,  seeing  this,  stopped  his  brilliant  cortege  and  did  not  continue 
on  his  way  until  I  had  been  put  in  a  carriage.  During  the  review  he  several 
times  sent  his  aides-de-camp  to  learn  of  my  condition. 

Our  celebrated  poet  Saadi  has  thus  expressed  himself  in  describing  pride: 
"  Its  glance  is  like  that  of  a  king  who  causes  his  army  to  pass  before  him." 

The  young  Emperor,  an  autocrat  of  26  years  of  age,  who,  for  the  first  time, 

after  his  accession  to  the  throne,  was  passing  in  review  a  brilliant  army  of 

30,000  men,  did  not,  in  that  moment  of  legitimate  pride,  forget  an  accident 

[26]  that  had  just  happened  to  a  stranger.     Indeed,  he  who  acts  thus  can  not 

be  selfish,  and  his  acts,  the  initiative  that  he  has  taken  for  this  Conference, 

can  only  proceed  from  a  good  and  noble  heart. 

On  the  reception  of  the  delegates  of  the  Conference  at  the  Hague  Palace, 
you  were  able  to  see  how  much  Her  Majesty  the  Queen  of  the  Netherlands  was 
interested  in  our  work  and  in  the  result  that  might  be  hoped  from  it. 

Gentlemen,  let  us  fulfil  our  duty  before  the  civilized  world,  and  not  discourage 
Their  Majesties  the  young  Queen  Wilhelmina  and  the  young  Emperor  Nicholas 
II.  With  all  my  heart  I  wish  that  the  high  initiative  of  the  Emperor  and  the 
good  wishes  of  the  Queen  may  be  crowned  with  success  for  the  welfare  of  our 
prosperity. 

At  the  request  of  the  president,  the  technical  delegate  of  the  Imperial  Russian 
Navy,  Captain  Scheine,  files  with  the  office  the  text  of  his  propositions  relative 
to  naval  armaments.     They  are  couched  in  these  terms : 

To  accept  the  principle  of  determining,  for  a  period  of  three  years,  the 
size  of  the  naval  budget  with  an  agreement  not  to  increase  the  total  sum  during 
this  triennial  period,  and  the  obligation  to  publish  in  advance  during  the  same 
period — 

1.  The  total  tonnage  of  war-ships,  which  it  is  proposed  to  construct,  without 
defining  the  types  of  the  ships  themselves ; 

2.  The  number  of  officers  and  men  in  the  navy; 

3.  The  expenses  of  coast  fortifications,  including  forts,  docks,  arsenals,  etc. 
The  meeting  adjourns. 


FIFTH  MEETING 

JUNE  25,   1899 


His  Excellency  Mr.  Beernaert  presiding. 

The  minutes  of  the  meeting  of  June  23  are  read  and  approved. 

The  President  asks  Messrs.  Gilinsky  and  Scheine  whether  they  desire  to 
develop  further  the  proposals  they  formulated  at  the  last  meeting  and  of  which 
the  text  has  been  printed  and  distributed  among  the  members  of  the  Commission. 

Colonel  Gilinsky  takes  the  floor  and  says : 

After  the  meeting  of  Friday,  June  23,  several  questions  have  been  addressed 
to  me  concerning  the  Russian  proposals  that  I  had  the  honor  to  submit  for 
discussion  by  the  First  Commission,  and  I  now  ask  permission  to  make  some 
explanations. 

It  has  been  observed  to  me  that  the  two  first  proposals  speak  of  the  same 
question:  why,  then,  divide  it  into  two  parts?  There  is  however  a  difference 
between  these  two  proposals;  that  is  to  say,  the  second  is  a  consequence  of  the 
first.  The  first  deals  with  the  question  as  a  whole:  the  question  of  principle. 
Russia  proposes  to  you  to  make  an  agreement  stipulating  for  the  non-increase 
of  the  present  number  of  troops  maintained  in  time  of  peace  in  each  mother 
country.  If  we  reach  such  an  agreement,  it  is  then  that  the  second  proposal 
comes  up,  the  question  of  the  number.  If  necessary  each  country  will  have  to 
declare,  in  round  or  exact  figures — still  according  to  our  decision, — the  total 
number  of  its  troops  maintained  in  time  of  peace.  It  is  to  be  defined  whether 
the  question  means  the  number  of  soldiers  only,  without  counting  officers.  Our 
proposal  looks  only  to  the  total  number  of  soldiers. 

It  will  be  necessary  next  to  state  the  total  number  of  recruits  for  each  year 
which  cannot  be  exceeded  during  the  period  of  the  understanding.  Finally,  it 
will  be  necessary  to  determine  the  number  of  years  that  the  soldier  is  to  remain 
under  the  flag,  for  you  know  well,  gentlemen,  that  a  change  in  this  term  has  its 
influence  upon  the  total  of  the  territorial  army. 

That  is  what  is  dealt  with  in  the  second  paragraph  of  the  Russian  proposal. 

In  the  two  proposals  we  deal  with  troops  maintained  in  the  mother  countries ; 

colonial  troops  are  excluded:  for  since  colonies  often  find  themselves  in  danger 

or  even  in  a  state  of  war,  it  does  not  appear  possible  to  prohibit  the  increase  of 

colonial  .troops.     Russia  has  no  colonies  properly  so-called,  that  is,  possessions 

absolutely  separated  by  the  sea.    But  we  have  territories,  which,  from  the  point 

of  view  of  their  defense,  are  in  the  same  circumstances  as  colonies;  for 

[27]  they  are  separated  from  the  mother  country,  if  not  by  the  sea,  at  least  by 

enormous  distances,  and  by  the  difficulty  of  communications;  that  is,  Asia 

and  the  military  district  of  the  Amur.     The  two  are  extremely  distant  from 

307 


308  FIRST  COMMISSION 

the  center  of  the  Empire ;  in  the  two  the  troops  are  not  numerous  and  they  find 
themselves  opposed  by  very  considerable  armies  which  are  nearer  our  troops 
than  the  reinforcements  that  we  can  send  from  Russia.  There  is,  therefore,  no 
means  of  placing  these  distant  territories  in  the  same  conditions  as  the  center  of 
the  country  and  of  forbidding  the  possibility  of  increasing  these  troops  in  case 
of  necessity;  consequently,  these  territories  must  be  considered  as  colonies. 

The  third  point  has  regard  to  the  ordinary  budget,  that  is  to  say,  the  neces- 
sary budget  for  the  maintenance  of  the  existing  troops;  the  manufacture  of 
arms  and  constructions  that  do  not  go  beyond  what  is  ordinary.  But  when 
there  is  a  complete  change  of  cannons  or  of  guns  as  well  as  the  reconstruction 
of  strongholds  required  by  the  effect  of  the  new  siege  cannon,  the  manufacture 
of  the  new  weapon  requires  enormous  sums  which  cannot  be  found  within  the 
limits  of  the  ordinary  budget.  These  sums  are  asked  by  the  Governments  of  all 
countries  in  addition  to  the  ordinary  budget;  this  is  the  extraordinary  budget 
that  can  neither  be  provided  for  nor  fixed.  The  high  assembly  having  sanctioned 
the  changing  of  armaments,  has  sanctioned  in  advance  also  the  extraordinary 
budget. 

The  President  asks  whether  other  members  have  any  proposition  to  develop 
respecting  the  first  subject  of  Count  Mouravieff's  circular. 

No  one  asking  the  floor,  he  opens  the  discussion  on  the  Russian  proposals 
and  asks  whether  all  the  delegates  have  received  from  their  respective  Govern- 
ments instructions  permitting  them  to  declare  themselves. 

The  Delegates  of  Slam,  of  Denmark  and  of  Serbia  say  that  the  instruc- 
tions that  they  have  requested  have  not  yet  arrived. 

Colonel  Uehara,  delegate  from  Japan,  says  that  he  has  not  yet  addressed 
to  his  Government  a  request  to  receive  instructions. 

The  President  consults  the  Commission  on  the  question  whether  it  is  best 
to  enter  upon  a  thorough  discussion  immediately,  or  to  charge  the  two  technical 
subcommissions  or  other  delegates  to  make  a  preliminary  examination. 

Colonel  Gross  von  Schwarzhoff  thinks  it  preferable  to  take  up  the  general 
discussion  immediately,  subject  to  deciding  afterwards,  if  necessary,  whether  they 
should  refer  the  examination  to  the  two  subcommissions. 

This  procedure  is  adopted. 

The  general  discussion  is  opened. 

Colonel  Gross  von  SchwarzhofT  speaks  as  follows: 

Gentlemen  :  Our  honored  colleague,  Colonel  Gilinsky,  has  requested  us 
not  to  vote,  but  to  discuss  the  propositions  which  have  been  formulated  in  his 
report  on  the  first  point  of  Count  Mouravieff's  circular. 

I  feel  constrained  to  comply  with  this  request  and  to  express  my  opinion. 
I  shall  do  so  with  perfect  frankness  and  without  any  reservation.  First,  however, 
I  wish  to  say  a  few  words  in  reply  to  General  den  Beer  Poortugael,  who 
made  himself  the  warm  defender  of  the  prospositions  even  before  they  had 
been  submitted  to  us.  He  did  so  in  elevated  and  picturesque  language,  for 
which  I  envy  him,  and  of  which  we  all  recognize  the  high  eloquence.  But  I  am 
unable  to  agree  with  all  the  ideas  he  has  expressed.  Quis  facet  consentire 
videatur,  says  a  Latin  proverb  and  I  would  not  like  my  silence  to  be  taken  for 
assent. 

I  do  not  believe  that  among  my  honored  colleagues  there  is  a  single  one 
ready  to  admit  that  his  sovereign,  his  Government,  is  engaged  in  working  for 
the  inevitable  ruin,  the  slow  but  sure  annihilation  of  his  country.     I  have  no 


FIFTH  MEETING,  JUNE  25,  1899  309 

mandate  to  speak  for  my  honored  colleagues,  but  as  far  as  Germany  is  con- 
cerned, I  can  reassure  her  friends  completely  and  dissipate  all  benevolent 
anxiety  regarding  her.  The  German  people  are  not  crushed  beneath  the  weight 
of  expenditures,  and  taxes ;  they  are  not  hanging  on  the  edge  of  the  precipice,  they 
are  not  hastening  towards  exhaustion  and  ruin.  Quite  the  contrary;  public  and 
private  wealth  is  increasing,  the  general  welfare,  and  standard  of  life,  are  rising 
from  year  to  year. 

As  for  compulsory  military  service,  which  is  intimately  associated  with 
these  questions,  the  German  does  not  regard  it  as  a  heavy  burden,  but  as  a 
sacred  and  patriotic  duty,  to  the  performance  of  which  he  owes  his  existence, 
his  prosperity,  his  future. 

I  return  to  the  propositions  of  Colonel  Gilinsky  and  to  the  arguments 
which  have  been  advanced,  and  which  to  my  mind  are  not  consistent  with  one 
another. 

On  the  one  hand,  it  is  feared  that  excessive  armament  may  lead  to  war ;  on 
the  other,  that  the  exhaustion  of  economic  forces  will  make  war  impossible. 
[28]  As  for  me  I  have  too  much  confidence  in  the  wisdom  of  sovereigns  and 
nations  to  share  such  fears. 

On  the  one  hand,  it  is  pretended  that  only  those  measures  are  necessary 
which  have  long  been  practiced  in  some  countries  and  which  therefore  pre- 
sent no  technical  difficulties.  On  the  other  hand,  it  is  said  that  this  is  pre- 
cisely the  most  difficult  problem  to  solve  and  that  for  it  a  supreme  effort  is 
necessary. 

I  am  entirely  of  the  latter  opinion.  We  shall  encounter  in  fact  insurmount- 
able obstacles,  difficulties  that  may  be  called  technical  in  a  little  larger  use  of  the 
term. 

I  think  that  the  question  of  troops  cannot  be  considered  entirely  alone, 
separated  from  a  crowd  of  other  questions  to  which  it  is  almost  subordinate. 

Such  are,  for  example,  the  extent  of  public  instruction,  the  length  of  active 
service,  the  number  of  established  regiments,  the  troops  in  the  army  units,  the 
number  and  duration  of  enrolments  under  the  flag,  that  is  to  say,  the  military 
obligations  of  retired  soldiers,  the  location  of  the  army  corps,  the  railway  system, 
the  number  and  situation  of  fortified  places. 

In  a  modern  army  all  such  things  are  connected  with  each  other  and  form, 
together,  the  national  defense  which  each  people  has  organized  according  to  its 
character,  its  history,  and  its  traditions,  taking  into  account  its  economic  re- 
sources, its  geographical  situation,  and  the  duties  which  devolve  upon  it. 

I  believe  that  it  would  be  very  difficult  to  replace  this  eminently  national 
task  by  an  international  agreement.  It  would  be  impossible  to  determine  the 
extent  and  the  force  of  a  single  part  of  this  complicated  machinery. 

It  is  impossible  to  speak  of  effectives  without  taking  into  account  the  other 
elements  which  I  have  enumerated  in  a  very  incomplete  manner. 

Again,  mention  has  been  made  only  of  troops  maintained  in  mother  countries, 
and  Colonel  Gilinsky  has  given  us  the  reason  for  this,  but  there  are  territories 
which  are  not  part  of  the  mother  country,  but  are  so  close  to  it  that  troops 
stationed  in  them  will  certainly  participate  in  a  continental  war,  and  the  countries 
beyond  the  seas.  How  could  they  permit  a  limitation  of  their  troops  if  colonial 
armies,  which  alone  menace  them,  are  left  outside  of  the  agreement? 

Gentlemen,  I  have  restricted  myself  to  indicating,  from  a  general  point  of 
view,  some  of  the  reasons  which,  to  my  mind,  are  opposed  to  the  realization  of 


310  FIRST  COMMISSION 

the  desire,  surely  unanimous,  of  reaching  an  agreement  on  the  subject  before 
us. 

Permit  me  to  add  a  few  words  regarding  the  special  situation  of  the  country 
that  I  have  the  honor  to  represent  in  this  body. 

In  Germany  the  number  of  effectives  is  fixed  by  an  agreement  between  the 
Government  and  the  Reichstag,  and  in  order  not  to  repeat  every  year  the  same 
debates,  the  number  was  fixed  for  seven  and  later  for  five  years. 

This  is  one  of  the  arguments  advanced  by  Colonel  Gilinsky  when  he 
declared  that  he  asks  of  us  nothing  new.  At  first  sight,  gentlemen,  it  might 
seem  that  such  an  arrangement  would  facilitate  our  adhesion  to  a  similar  pro- 
posal. 

But  apart  from  the  fact  that  there  is  a  great  difference  between  municipal 
law  and  an  international  convention,  it  is  precisely  our  quinquennium  which 
prevents  us  from  making  the  proposed  agreement. 

There  are  two  reasons  against  it.  First,  the  international  period  of  five 
years  would  not  synchronize  with  the  national  period  of  five  years,  and  this 
would  be  a  serious  inconvenience. 

Furthermore,  the  military  law  which  is  to-day  in  force  does  not  fix  a  special 
number  of  effectives,  but  on  the  contrary  it  provides  for  a  continuous  increase 
up  to  1902  or  1903,  in  which  year  the  reorganization  begun  this  year  will  be 
finished.  Until  then,  it  would  be  impossible  for  us  to  maintain  even  for  two 
consecutive  years  the  same  number  of  effectives. 

Colonel  Gilinsky  replies  that  it  is  impossible  for  him  to  speak  in  opposition 
to  the  arguments  of  a  domestic  nature  advanced  by  the  delegate  of  Germany.  If 
he  proposes  an  agreement,  it  is  because  he  believes  it  possible  for  the  States  to 
make  adequate  arrangements  for  enforcing  it. 

As  to  Germany,  the  increase  in  progress  is  not  so  considerable  that  it  could 
not  be  checked  for  the  short  period  of  five  years  or  even  less.  The  German 
army  would  not  suffer  thereby. 

As  to  the  wealth  of  nations,  Colonel  Gilinsky  did  not  say  that  all  countries 
were  being  impoverished,  for  there  are  some  which  are  progressing  in  spite  of 
military  expenditures;  but  these  expenditures  are  certainly  not  an  aid  to  public 
prosperity.     Increasing  armaments  are  not  of  a  nature  to  add  to  the  wealth  of 

Governments,  although  they  may  be  profitable  to  some  individuals. 
[29]   He  willingly  admits  that  railroads  have  a  great  influence  on  the  defense 
of  a  country.    An  army  would  have  to  be  much  more  numerous  if  it  were 
not  united  within  by  many  railways. 

The  railroads  increase  the  possibility  of  bringing  help  to  all  points  of 
the  frontier.  This  is  why  a  country  abounding  in  railroads  can  diminish  its 
army  or  at  least  not  further  increase  it. 

As  for  countries  beyond  the  sea,  he  admits  exceptions,  notably  among 
those  whose  army  is  small  or  in  process  of  formation.  What  is  necessary  here 
is  not  to  adopt  a  general  rule  covering  everything,  but  to  find  a  formula  giving 
satisfaction  if  not  to  all,  at  least  to  a  large  number. 

Colonel  Gross  von  Schwarzhoff  says  he  has  a  few  words  to  say  in  reply. 
He  fears  that  he  has  not  been  understood. 

He  has  not  denied  that  another  use  might  be  found  perhaps  more  humani- 
tarian for  the  money  spent  on  armaments,  he  merely  wished  to  reply  to  language 
which  perhaps  (certainly,  in  his  opinion)  is  a  trifle  exaggerated.  The  number 
of  troops  alone  does  not  afford  a  proper  basis  of  comparison  for  the  strength  of 


FIFTH  MEETING,  JUNE  25,  1899  311 

armies,  but  there  are  many  other  things  that  must  be  taken  into  consideration. 
While  maintaining  the  number  of  its  troops,  any  Power  can  increase  its  miUtary 
strength.  The  equiHbrium  which  is  thought  to  exist  at  present,  will  be  destroyed. 
To  reestablish  it,  it  is  quite  necessary  that  the  other  Powers  which,  perhaps,  will 
not  be  able  to  employ  the  same  measures,  be  free  to  choose  among  all  the  means 
accessible  to  them. 

Jonkheer  van  Karnebeek  desires  to  take  the  floor,  not  only  because  the 
German  delegate  has  made  General  den  Beer  Poortugael  personally  a  party 
to  the  issue,  but  because  his  considerations  equally  bore  on  one  side  of  the  ques- 
tion that  could  be  taken  up  by  the  non-technical  delegates. 

He  declares  that,  if  Colonel  Gross  von  Schwarzhoff  contends  that 
the  Russian  proposals  raise  very  great  technical  difficulties,  perhaps  even  insur- 
mountable ones,  it  is  not  he  who  will  pretend  the  contrary.  If,  however,  the 
meaning  of  the  words  of  the  Colonel  is  that  the  question  does  not  merit  the 
most  serious  attention  of  the  Conference  and  even  of  the  entire  world,  and 
that  the  motives  which  have  led  the  Russian  Government  to  submit  these  pro- 
posals to  the  Conference  are  not  well  founded,  he  permits  himself  to  declare  that 
he  is  of  an  opinion  that  is  diametrically  opposed,  and  that  he  will  not  be  the  only 
one  so  believing. 

Of  course,  it  may  be  that  in  some  countries  military  expenditures  press  less 
heavily  than  elsewhere,  but  it  must  be  recognized  that  the  sums  devoted  to  arma- 
ments might,  even  in  these  countries,  be  employed  more  usefully  for  a  different 
purpose. 

There  are  other  countries  where  the  people  do  not  take  the  same  views  as 
the  German  delegate  and  where  the  expenditures  press  very  evidently  upon  public 
prosperity. 

Mr.  Gross  von  Schwarzhoff  will  be  the  first  to  affirm  that  the  ques- 
tion ought  not  only  to  be  viewed  from  the  standpoint  of  the  countries  whose 
prosperity  has  apparently  not  suffered  through  armaments;  but  even  in  those 
States  it  must  be  asked  if  these  expenses  are  really  necessary  for  national  defense 
or  whether  they  are  rather  the  consequence  of  international  competition  in  this 
matter.  Now,  the  fundamental  idea  of  the  Russian  propositions  is  precisely  that 
the  burden  of  armaments  may  be  reduced  if  an  agreement  can  be  secured  for 
diminishing  its  international  competition. 

But  it  is  necessary  still  to  view  the  question  from  another  point  of  view. 

There  is  for  the  several  Governments  not  only  an  external  danger  to  provide 
against,  but  they  have  also  to  take  into  account  opinion  at  home,  which  may 
become  in  the  course  of  time  a  peril. 

Enormous  military  expenditures  which  burden  nations  may  become  the 
cause  of  dangerous  weapons  against  the  established  social  order  in  the  different 
countries.  And  if,  because  of  technical  difficulties,  we  should  too  readily  declare 
ourselves  incapable  of  making  an  effort  to  reach  a  solution  of  this  important 
question  we  should  be  playing  the  game  of  those  who  find  their  advantage  in 
agitation  against  the  existing  order  of  things. 

Doctor  Stancioff,  first  delegate  of  Bulgaria,  delivers  the  following  address : 

I  have  the  honor  to  take  the  floor  to  express  the  sympathy  of  the  Bulgarian 
delegation  in  favor  of  a  proposal,  from  whatever  source  it  may  come,  that  would 
tend  to  the  non-augmentation  of  the  present  effective  armed  forces  for  a  fixed 
period. 

For  if  every  nation  is  a  partial  mother  in  respect  to  its  privileged  child,  the 


312  FIRST  COMMISSION 

soldier,  in  order  that  he  may  never  be  in  a  state  of  inferiority  compared  with 
those  who  surround  him,  it  is  not  less  certain,  that  the  possibility  of  a  check  in 
the  increase  of  armament  would  be  an  economy  and  a  source  of  wealth  for  the 
peoples  that  might  subscribe  to  it. 

Armed  peace  is  ruinous  for  small  States,  whose  needs  are  numerous  and 
who  have  everything  to  gain  by  investing  their  means  in  the  development  of 

industry,  of  agriculture  and  the  requisites  of  progress. 
[30]   It  is  this  point  of  view  that  I  take  in  desiring  to  bring  away  from  the 
Conference  the  assurance  of  seeing  Bulgaria  increase  in  domestic  greatness, 
without  the  anxiety  for  an  increase  of  forces  that  the  example  of  other  nations 
imposes  upon  her. 

From  the  moment  that  the  circular  of  his  Excellency  Count  Mouravieff 
was  published  and  discussed,  I  often  heard  it  said  that  the  proposal  that  we  are 
considering  would  be  an  infringement  upon  sovereign  rights  and  the  liberty  of 
nations.  But,  since  we  are  discussing  it  freely,  we  shall  also  apply  it  with  good- 
will when  it  shall  have  received  its  sanction  in  unanimity  of  consent. 

And  without  having  the  pretension  of  influencing  anyone,  I  indicate  in 
advance  my  vote  in  order  that  the  countries  which  surround  mine  may  take  note 
of  the  idea  that  inspires  us  and  the  practical  development  that  we  wish  for  our 
country  in  its  moral  happiness  and  its  progress. 

General  den  Beer  Poortugael:  I  have  to  state  that  our  honored  colleague 
Colonel  Gross  von  Schwarzhoff  is  quite  mistaken  in  saying  that  I  have  been 
a  defender  of  the  proposals  of  Colonel  Gilinsky.  Of  these  proposals  I  knew 
not  a  single  word  until  they  were  presented  to  the  full  Commission  in  our  last 
meeting. 

What  I  have  defended  is  the  first  cause  of  the  circular  of  Count  Moura- 
vieff, as  I  have  said,  in  a  manner  that  cannot  be  misunderstood,  and  if  I  have 
defended  it  warmly,  it  is  because  it  deserves  it. 

The  delegate  of  Germany  has  said  that  all  that  I  have  advanced  on  the 
crushing  taxes  and  ruinous  imposts  caused  by  the  ever-increasing  armament  is 
not  applicable  to  his  country. 

While  felicitating  him  thereon,  I  state  that  I  did  not  have  in  view  the  present 
conditions  of  things  but  the  future.  That  is  why  I  used  the  words :  "  continuing  in 
this  way,"  and  I  think  that  this  way  is  always  dangerous  even  for  the  richest 
States. 

As  to  obligatory  service,  of  which  Colonel  Gross  von  Schwarzhoff 
has  spoken  in  the  refutation  that  he  has  done  me  the  honor  to  address  to  me,  I 
have  defended  its  principle  for  almost  forty  years.  Like  himself,  I  consider 
obligatory  service  or  personal  service  a  sacred  and  patriotic  duty,  but,  not  having 
mentioned  that  service  in  my  speech,  all  that  the  delegate  of  Germany  has  said  on 
that  point  can  bear  no  relation  to  my  speech. 

No  one  asking  the  floor,  the  President  declares  the  general  discussion  closed. 

He  remarks  that  the  objections  presented  would  only  relate  to  the  proposals 
relative  to  the  forces  of  land  armies.  The  proposals  of  the  Russian  delegate  as 
to  the  navy  have  not  even  yet  been  developed. 

He  asked  the  meeting  whether  it  is  agreeable  to  it  to  discuss  the  questions  of 
detail  in  full  committee,  or  whether  it  would  not  be  preferable  to  entrust  its 
examination  either  to  the  technical  subcommissions,  or  to  a  special  committee, 
upon  which  the  Great  Powers  particularly  would  be  represented,  the  solution 
depending  upon  them  alone. 


FIFTH  MEETING,  JUNE  25,  1899  313 

Mr.  Raffalovich  supports  the  reference  to  the  subcommissions  of  the  two 
Russian  proposals  that  have  different  bases. 

His  Excellency  Sir  Julian  Pauncefote  would  prefer  that  a  special  committee 
be  created  for  the  examination  of  each  proposal. 

Mr.  Bourgeois  sees  no  inconvenience  in  the  creation  of  this  committee, 
but  he  would  wish  that  the  small  States  that  are  necessarily  inclined  to  the 
maintenance  of  peace  be  represented  equally  thereon. 

The  President  puts  the  question  to  a  vote  by  a  division. 

It  is  decided  to  refer  the  Russian  proposals  to  a  technical  examination  by 
seventeen  votes  (United  States  of  America,  Belgium,  Spain,  France,  Great  Britain, 
Italy,  Japan,  Netherlands,  Persia,  Portugal,  Roumania,  Russia,  Serbia,  Siam, 
Sweden  and  Norway,  Turkey  and  Bulgaria)  against  two  (Germany  and  Austria- 
Hungary),  with  three  abstentions  (Denmark,  Greece,  Switzerland). 

Mr.  Raffalovich  suggests  charging  each  subcommission  to  constitute  and  form 
a  special  committee. 

This  motion  is  adopted. 

The  President  proposes  to  the  first  subcommission  that  it  meet  immediately. 
(Adopted.) 

The  meeting  adjourns. 


[31J 

SIXTH  MEETING 

JUNE  30,  1899 


His  Excellency  Mr.  Beernaert  presiding. 

The  minutes  of  the  meeting  of  June  26  are  read  and  adopted. 

Mr.  Miyatovitch,  first  delegate  of  Serbia,  desires  to  make  a  declaration 
respecting  the  minutes  of  the  last  meeting.  He  expresses  himself  in  the  following 
terms : 

We  did  not  have  the  intention  until  to-day  to  speak  on  the  question  that 
is  the  order  of  the  day,  because  we  thought  that  it  belonged  to  the  great  Powers 
to  express  themselves  first  on  this  subject. 

Agreement  between  the  great  Powers  would  have,  it  seems  to  us,  facilitated 
an  agreement  among  the  small  ones,  whilst  a  declaration  on  the  part  of  the 
small  States  saying  that  they  had  accepted  or  would  not  accept  the  proposal  made, 
would  not  seem  to  us  to  make  any  decisive  contribution  or  to  have  any  serious 
influence  upon  the  success  of  the  work  that  is  uniting  us  here. 

But,  since  there  has  already  been  in  this  Commission  a  sort  of  direct  appeal 
to  the  Powers  whose  neighbors  we  are,  we  consider  it  our  duty  towards  this  high 
assembly  and  a  courtesy  towards  the  delegation  that  has  made  the  appeal  in 
question,  to  declare  ourselves  at  once. 

We  have,  therefore,  the  honor  to  declare  emphatically  and  in  all  sincerity  that 
Serbia  is  perhaps  that  country  of  all  the  world  that  most  hopes  for  a  long  peace, 
one  that  will  be  uninterrupted  and  honorable. 

The  program  of  the  Government,  which  its  sovereign  himself  has  outlined, 
and  in  recent  times  again  taken  up  on  several  occasions,  consists  in  concen- 
trating its  principal  forces  with  a  view  to  developing  the  economic  resources  of 
the  country. 

Acting  in  conformity  with  the  pacific  spirit  of  this  program,  it  has,  since 
the  circular  of  Count  Mouravieff,  reduced  its  military  forces  fully  one-fourth. 
We  could  mention  several  other  acts  which  would  abundantly  prove  how  pacific 
are  our  desires. 

And  we  can  only  congratulate  ourselves  when  we  hear  that  a  country  that 
is  a  neighbor  and  a  friend  of  Serbia  declares,  under  such  solemn  conditions 
a  wish  to  follow  a  policy  that  we  ourselves  are  already  practicing. 

And  our  hope  that  we  are  not  to  be  hindered  in  this  work  of  ours,  nor  forced 
out  of  peaceful  paths,  is  the  more  sincere  since  we  love  to  believe  that,  through 
international  peace,  international  justice  may  be  attained. 

We  have,  in  short,  the  firm  conviction  that  the  great  movement  of  lofty 
ideas,  called  forth  through  the  entire  world  by  the  generous  initiative  of  His 
Majesty  the  Emperor  of  Russia,  while  fortifying  the  sentiment  of  solidarity 
among  civilized  nations,  will  end  by  giving  a  decisive  support  to  the  small  Powers 

314 


SIXTH  MEETING,  JUNE  3C.  1899  315 

which  in  their  national  aspirations  ask  only  respect  for  their  independence,  justice 
and  equity. 

And,  while  awaiting  the  arrival  of  that  moment,  we  shall  never  fail — al- 
though we  continue  to  bestow  upon  our  army  a  legitimate  solicitude — to  associate 
ourselves  heartily  with  all  enterprises  that  have  humane  and  civilizing  tendencies. 
So  it  is  exclusively  these  ideas  that  have  inspired  all  our  votes  in  the  Conference. 

As  to  the  concrete  question  of  the  non-augmentation  of  forces  and  fixing 
of  military  budgets,  the  positive  instructions  that  we  have  received  from  our 
Government  since  the  last  meeting  enable  us  now  to  cast  a  definite  vote.  Never- 
theless, as  the  moment  for  voting  has  not  yet  arrived,  we  think  that  we  should 
await  that  time  before  declaring  our  position. 

The  President  recalls  that  following  a  decision  taken  in  the  last  meeting 
of  the  Commission,  the  Russian  proposals  were  referred  for  examination  to  two 
technical  subcommissions. 

The  committee,  charged  by  the  first  subcommission  with  examining  the 
proposals  of  Colonel  Gilinsky,  met  twice  and  after  a  thorough  exchange  of 
views,  of  which  no  minutes  were  kept,  agreed  on  the  following  wording: 

The  members  of  the  committee,  charged  with  the  examination  of  the 
proposals  of  Colonel  Gilinsky  relating  to  the  first  topic  of  Count  Moura- 
vieff's  circular  have  met  twice. 

With  the  exception  of  Colonel  Gilinsky,  they  have  decided  unani- 
mously : 
[32]  1.    That  it  would  be  very  difficult  to  fix,  even  for  a  term  of  five  years, 

the  number  of  troops  without  regulating  at  the  same  time  other  elements 
of  national  defense; 

2.  That  it  would  be  no  less  difficult  to  regulate  by  an  international  agree- 
ment the  elements  of  this  defense,  organized  in  each  country  upon  very 
different  principles. 

f-Ience,  the  committee  regrets  its  inability  to  accept  the  proposition  made 
in  the  name  of  the  Russian  Government.  The  majority  of  its  members 
believe  that  a  more  thorough  study  of  the  question  by  the  Governments 
themselves  would  be  desirable. 

General  Zuccari  states  the  position  that  the  Italian  Government  intends  to 
take  with  regard  to  the  questions  raised  by  the  Russian  proposals  on  forces. 

The  forces  of  the  Italian  army  in  peace  are  fixed  by  organic  laws  which  the 
Italian  Government  does  not  intend  to  change. 

The  Italian  Government  intends  to  retain  the  same  liberty  of  action  as 
the  other  Powers  since  an  international  engagement  on  this  matter  is  not  now 
deemed  possible. 

The  President  observes  that  the  point  is  to  state  the  impossibility  of  arriving 
at  a  positive  result  immediately,  but  with  the  desire  of  seeing  the  Governments 
themselves  take  up  the  study  of  the  questions  raised  by  the  first  proposition  of 
Count  Mouravieff's  circular.  He  asks  if  Colonel  Gilinsky  can  support  this 
wish. 

Colonel  Gilinsky  replies  that  from  the  moment  that  the  immediate  under- 
standing cannot  be  brought  about,  he  considers  it  very  desirable  that  the  Govern- 
ments should  make  a  preliminary  study. 

The  President  asks  if  any  member  of  the  assembly  has  any  other  proposal 
to  make. 

Nobody  asks  the  floor. 


316  FIRST  COMMISSION 

The  President  asks  if  there  is  any  opposition  to  the  conclusions  expressed 
in  the  opinion  of  the  technical  committee. 

He  considers  the  silence  of  the  assembly  as  a  complete  adhesion  and  believes 
that  under  the  circumstances  he  need  not  call  for  any  votes.  In  short,  there  is  no 
resolution  to  be  taken  and  the  committee  does  not  even  ask  for  a  study  together. 
For  the  moment,  it  is  for  each  country  to  await  a  preliminary  and  more  thorough 
study.     (Numerous  indications  of  consent.) 

Baron  Bildt,  first  delegate  of  Sweden  and  Norway,  makes  the  following 
declaration : 

I  venture  to  say  that  in  no  country  have  the  Russian  proposals  been  received 
with  a  more  spontaneous  and  more  sincere  sympathy  than  in  Sweden  and  Norway. 
Profoundly  convinced  of  the  necessity  of  peace,  we  have  for  nearly  a  century 
pursued  a  policy  which  looks  to  nothing  but  the  maintenance  of  good  relations 
with  other  Powers,  and  our  military  establishments  have  always  had  only  one 
object:  the  protection  of  our  independence  and  the  maintenance  of  neutrality. 
A  message  of  peace,  having  in  view  a  limitation  of  the  armaments  which  now 
weigh  heavily  upon  the  world,  could  not  be  otherwise  than  welcome  to  us,  and 
it  could  not  come  from  any  better  source  than  our  powerful  neighbor.  If,  not- 
withstanding this,  we  have  not  been  able  to  support  the  proposals  advanced  by 
Colonel  GiLiNSKY,  it  is  not  because  we  have  not  had  the  same  desire  as  he  as 
to  the  question  of  what  is  to  be  done,  but  because  we  are  blocked  by  an  important 
question  of  form. 

The  Russian  proposals,  in  short,  make  no  difference  between  armies  already 
organized  according  to  the  principles  of  modern  military  science,  and  those  which 
are  still  governed  by  former  conditions,  even  superannuated  ones,  or  those  which 
are  in  process  of  transformation. 

They  make  no  distinction,  moreover,  between  armies  that  constitute  a  com- 
plete military  weapon,  equally  adapted  to  attack  or  defense,  and  those  which 
either  by  the  short  duration  of  service,  or  by  other  distinctive  qualities,  manifestly 
show  that  they  have  merely  a  defensive  character.  This  is  precisely  the  case  with 
the  Swedish  and  Norwegian  armies,  organized  on  the  basis  of  obligatory  service  of 
a  few  months  and  being  in  a  state  of  transformation. 

When  I  shall  have  mentioned  that  the  greater  number  of  units  of  the  Swedish 
army  rest  on  a  system  dating  two  centuries  ago,  I  shall,  I  think,  have  said  enough 
to  convince  you  that  this  is  not  an  organization  that  we  could  engage  to  maintain 
even  for  five  years. 

We  have,  therefore,  not  been  able  to  vote  for  the  Russian  proposal  as  it 
has  been  formulated,  and  I  state  this  fact  with  sincere  regret — I  will  say  more — 
with  genuine  sorrow.  For,  gentlemen,  we  are  about  to  terminate  our  labors 
recognizing  that  we  have  been  confronted  with  one  of  the  most  important  prob- 
lems of  the  century,  and  that  we  have  accomplished  very  little  towards   its 

solution. 
[33]  Let  us  not  indulge  in  illusions. 

When  the  results  of  our  deliberations  shall  become  known,  there  will  arise, 
notwithstanding  all  that  has  been  done  for  arbitration,  the  Red  Cross,  etc.,  a 
great  cry :    It  is  not  enough ! 

And  this  cry :  "  It  is  not  enough,"  most  of  us  in  our  consciences  will 
acknowledge  to  be  just.  Our  consciences,  it  is  true,  may  also  tell  us  in  consola- 
tion, that  we  have  done  our  duty,  since  we  have  faithfully  followed  our  instruc- 


SIXTH  MEETING,  JUNE  30,  1899  317 

tions.     But  I  venture  to  say  that  this  duty  is  not  fulfilled  and  that  there  still 
remains  something  for  us  to  do. 

I  am  going  to  explain. 

The  Czar's  proposal  has  been  strewn  with  all  the  flowers  of  rhetoric  by  men 
much  more  eloquent  than  I.  It  will  suffice  for  me  to  say  that,  while  his  idea  is 
grand  and  beautiful  and  while  it  responds  to  a  desire  felt  by  thousands  upon 
thousands  of  men,  that  means  too  that  it  cannot  die.  If  the  Emperor  will  only 
add  to  the  nobility  of  heart  and  generosity  of  spirit,  of  which  he  has  given  proof, 
the  virtue  of  perseverance,  the  triumph  of  his  work  is  assured.  He  has  received 
from  Providence,  not  only  gifts  of  power,  but  also  that  of  youth.  If  the  genera- 
tion to  which  we  belong  is  not  destined  to  accomplish  the  task,  he  may  count 
on  that  which  is  coming  soon  to  take  our  places.  The  future  belongs  to  him. 
But,  meanwhile,  all  of  us  who  desired  to  be  each  in  his  little  sphere  of  activity, 
his  humble  and  faithful  coworkers,  have  the  duty  of  searching  for  and  explaining 
to  our  Governments  with  entire  frankness  and  complete  veracity,  each  imperfec- 
tion, each  omission,  which  may  occur  in  the  preparation  or  in  the  execution  of 
this  work,  and  of  seeking  with  tenacity  the  means  of  doing  better  and  doing 
more,  whether  these  means  be  found  in  new  conferences,  in  direct  negotiations 
or  with  all  simplicity  in  the  setting  of  a  good  example.  There  is  the  duty  which 
remains  for  us  to  acomplish. 

In  conclusion,  I  declare  that  I  support  the  proposition  that  his  Excellency 
Mr.  Beernaert  has  just  made.     (Applause.) 

Mr.  Bille,  first  delegate  of  Denmark,  states  that  the  views  expressed  by 
Baron  Bildt  are  in  complete  harmony  with  those  of  the  Danish  Government. 

Mr.  Leon  Bourgeois  expresses  himself  in  the  following  terms: 

I  have  been  very  happy  to  listen  to  the  eloquent  remarks  that  Baron  Bildt 
has  just  delivered.  They  express  not  only  my  personal  opinion  and  the  opinion 
of  my  colleagues  of  the  French  delegation,  but,  I  am  sure,  the  unanimous  opinion 
of  the  members  of  the  Conference. 

I  wish  then,  gentlemen,  to  join  in  the  appeal  which  the  delegate  of  Sweden 
and  Norway  has  just  made.  I  believe  that  to  express  completely  the  thought  by 
which  it  was  animated,  the  Commission  must  do  something  more. 

I  hav€  read  carefully  the  text  of  the  conclusions  adopted  by  the  technical 
committeee.  This  report  shows  with  great  precision  and  force  the  difficulties 
now  in  the  way  of  concluding  an  international  convention  on  the  limitation  of 
armaments.  The  examination  of  these  practical  difficulties  was  indeed  exactly 
the  work  of  the  technical  committee  and  no  one  thinks  of  criticizing  the  terms 
in  which  it  has  acquitted  itself  of  its  task. 

But  the  Commission  has  the  duty  to  consider  from  a  point  of  view  that  is 
more  general  and  lofty  the  problem  presented  by  the  first  paragraph  of  Count 
Mouravieff's  circular.  The  Commission  certainly  does  not  wish  to  remain 
indiflferent  to  the  question  of  principle  presented  to  the  civilized  world  by  the 
generous  initiative  of  His  Majesty  the  Emperor  of  Russia.  It  seems  to  me 
necessary  that  an  additional  resolution  be  adopted  by  us  to  express  more  precisely 
the  sentiments  which  animated  the  preceding  speaker  and  which  should  make  us 
all  desire  that  the  work  undertaken  be  not  abandoned. 

This  question  of  principle  is  summed  up  in  very  simple  terms :  Is  it  de- 
sirable to  restrict  the  military  charges  that  are  weighing  on  the  world? 

I  listened  with  great  care  in  the  last  meeting  to  the  remarkable  speech  of 


318  FIRST  COMMISSION 

Colonel  Gross  von  Schwarzhoff.  He  presented  with  the  greatest  possible 
force  the  technical  objections  which,  according  to  his  view,  prevented  the  Com- 
mission from  adopting  the  proposals  of  Colonel  Gilinsky.  It  did  not,  however,, 
seem  to  me  that  he  at  the  same  time  sufficiently  recognized  the  general  ideas 
in  pursuance  of  which  we  are  here  united.  He  showed  us  that  Germany  is 
easily  supporting  the  expense  of  its  military  organization  and  reminded  us  that 
notwithstanding  this  his  country  was  enjoying  a  very  great  measure  of  commer- 
cial prosperity. 

I  belong  to  a  country  which  also  supports  readily  all  personal  and  financial 
obligations  imposed  by  national  defense  upon  its  citizens,  and  we  have  the  hope 
of  showing  next  year  to  the  world  that  they  have  not  lessened  the  activity  of 
our  production  nor  hindered  the  increase  of  our  economic  prosperity.  But, 
Colonel  Gross  von  Schwarzhoff  will  surely  recognize  with  me  that^ 
[34]  for  his  country  as  for  mine,  if  the  considerable  resources  that  are  devoted 
to  military  organization  were  in  part  put  to  the  service  of  pacific  and  pro- 
ductive activities,  the  total  of  prosperity  of  each  nation  could  not  but  increase 
at  a  much  more  rapid  pace. 

This  is  the  idea  which  it  is  important  not  only  to  express  here  among  us  but 
also,  if  possible,  to  state  before  the  opinion  of  the  world. 

Therefore,  if  I  were  called  upon  to  vote  on  the  question  laid  down  by  the 
first  paragraph  of  the  proposition  of  Colonel  Gilinsky,  I  should  not  hesitate  to 
express  myself  in  the  affirmative. 

However,  we  perhaps  have  no  right  here  to  consider  only  how  our 
own  particular  country  bears  the  burdens  of  armed  peace.  Our  task  is  a 
higher  one:  We  are  called  upon  to  examine  the  situation  of  the  nations  as  a 
whole. 

In  other  words,  we  not  only  have  to  cast  private  votes  in  accordance  with 
our  own  particular  situation.  If  there  is  a  general  idea  which  may  serve  for  the 
common  welfare,  we  should  try  to  elicit  it.  It  is  not  our  mission  to  constitute 
ourselves  a  majority  or  a  minority.  We  must  not  bring  out  what  may  separate 
us,  but  we  should  seek  what  is  likely  to  unite  us. 

If  we  deliberate  in  this  spirit,  I  hope  we  shall  find  a  general  formula  which, 
making  reservation  with  regard  to  the  difficulties  of  which  we  are  all  aware,  will 
at  least  express  the  idea  that  the  limitation  of  armaments  would  be  a  benefit  to 
humanity  and  give  the  Governments  the  necessary  moral  support  in  order  to  enable 
them  to  pursue  this  noble  purpose. 

Gentlemen,  the  purpose  of  civilization  appears  to  us  to  be  to  place  more  and 
more  above  the  struggle  for  existence  among  men  an  agreement  among  them 
for  the  struggle  against  the  cruel  servitudes  of  matter.  This  is  the  same  idea 
which  the  initiative  of  the  Czar  proposes  that  we  affirm  with  respect  to  the  rela- 
tions among  the  nations. 

While  it  is  a  painful  necessity  to  be  obliged  to  give  up  a  positive  and  imme- 
diate understanding  on  this  matter  at  present,  we  must  try  to  prove  to  public 
opinion  that  we  have  at  least  sincerely  examined  the  problem  placed  before  us. 
We  shall  not  have  labored  in  vain  if,  by  formulating  general  terms,  we  indicate 
the  purpose  toward  which  we  unanimously  desire,  as  I  hope,  to  see  the  civilized 
peoples  as  a  whole  march.     (Applause.) 

The  President  requests  Mr.  Bourgeois  to  kindly  frame  in  writing  the  wish 
which  he  has  just  so  eloquently  expressed. 


SIXTH  MEETING,  JUNE  30,  1899  319 

Mr.  Leon  Bourgeois,  proposes  the  following  wording: 

The  Commission  is  of  opinion  that  the  restriction  of  military  charges, 
which  are  at  present  a  heavy  burden  on  the  world,  is  extremely  desirable 
for  the  increase  of  the  material  and  moral  welfare  of  mankind. 

As  no  delegate  asks  the  floor  in  regard  to  the  proposition  of  Mr.  Bourgeois, 
which  has  just  been  heard  with  such  favor,  the  President  declares  it  to  be 
adopted. 

Mr.  Delyanni,  a  delegate  from  Greece,  wishes  to  explain  why  he  could  not 
support  the  propositions  of  the  delegate  from  Russia,  as  well  as  the  reasons  why 
his  Government  could  not  now  join  in  measures  which  would  hamper  its  efforts 
toward  the  reorganization  of  its  army. 

Far  be  it  from  me  (he  said)  to  disregard  the  breadth  of  views  of  the 
Russian  circular  of  December  30,  1898 ;  on  the  contrary  I  admire  the  magnanimity 
of  His  Majesty  the  Emperor  Nicolas  II,  who,  in  order  to  lighten  the  heavy 
burdens  which  weigh  on  the  peoples  for  the  maintenance  of  large  armies,  pro- 
poses to  encourage  the  non-augmentation,  for  a  period  to  be  fixed,  of  the  present 
effective  strength  of  the  armed  forces  of  land  and  sea,  as  well  as  of  war  budgets 
relating  thereto,  and  a  preliminary  study  of  the  ways  in  which  it  might  even 
be  possible  in  future  to  accomplish  a  reduction  of  the  aforementioned  effective 
strength  and  budgets.  I  believe,  however,  that  we  should,  before  reaching  a 
final  decision  on  this  grave  question,  take  into  account  the  peculiar  situation  of 
each  of  the  countries  represented  at  the  Conference ;  thus,  as  far  as  Greece  is 
concerned,  I  should  like  to  submit  to  the  judgment  of  the  Conference  and  develop 
the  views  of  my  Government  on  the  matter  which  forms  the  first  theme  of  the 
Russian  circular. 

In  consequence  of  budgetary  difficulties  and  of  the  financial  situation  in 
which  Greece  has  been  during  recent  years,  we  have  been  unable  to  deal  seriously 
with  the  question  of  reorganizing  our  army  according  to  the  plans  generally  ac- 
cepted by  all  other  countries,  or  of  endowing  it  with  improved  armament. 

After  the  last  war,  the  Greek  Government  found  it  necessary  to  take  into 
serious  consideration  the  reorganization  of  its  army  and  navy  on  a  new  basis, 
as  well  as  the  improvement  of  its  military  and  naval  armament,  but  as  these 
questions  of  such  capital  importance  to  the  country  are  under  study  and 
[35]  as  it  has  been  impossible  as  yet  to  reach  any  definite  decision,  it  does  not 
seem  possible  to  us  to  assume  any  formal  engagements  on  these  questions, 
that  is,  engagements  which  would  bind  the  Greek  Government,  in  case  the  studies 
which  are  now  under  way  in  regard  to  its  military  situation  should  induce  it  sub- 
sequently to  increase  to  a  certain  extent  the  nucleus  or  numbers  of  its  military 
and  naval  forces  in  time  of  peace ;  especially  as  the  strength  of  its  present  army 
is  much  below  the  average  of  the  armies  of  the  other  nations,  particularly  of 
those  whose  budgetary  situation  and  population  offer  any  analogy  with  Greece ; 
for,  if  Greece  were  to  keep  within  the  same  proportions  as  the  nations  of  which  I 
have  just  spoken,  it  would  have  to  maintain  in  time  of  peace  a  much  more 
numerous  army  than  that  which  it  maintains  at  present. 

For  these  reasons  Greece,  while  doing  homage  to  the  generous  idea  which 
inspires  the  Russian  circular,  could  not  in  a  general  way  assume  obligations  of 
a  prohibitory  nature  in  regard  to  the  non-augmentation,  for  a  period  to  be  pre- 
scribed, of  the  present  effective  strength  of  her  land  and  sea  forces,  as  well  as  of 


320  FIRST  COMMISSION 

the  war  budgets  relating  thereto,  or  the  reduction  in  future  of  the  aforesaid 
effective  strength  and  budgets. 

The  assembly  now  takes  up  the  examination  of  the  Russian  propositions 
relating  to  the  navy. 

The  President  now  reads  the  report  of  the  subcommission,  worded  as 
follows : 

The  second  subcommission  met  Monday  the  26th  instant,  immediately 
after  the  meeting  of  the  First  Commission,  in  order  to  take  into  consideration 
the  Russian  propositions  concerning  the  navy,  as  formulated  by  the  delegate 
from  Russia,  Captain  Scheine. 

The  latter  kindly  gave  the  subcommission  some  subsequent  explanations 
in  order  to  accurately  define  the  sense  and  scope  of  the  propositions  specified 
in  Annex  G  of  the  summary  account  of  the  meeting  of  the  First  Commission 
of  June  23. 

Captain  Scheine,  after  stating  that  the  budget  of  the  navy  as  referred 
to  in  the  Russian  proposition,  comprises  the  extraordinary  as  well  as  the  ordi- 
nary budget,  made  the  important  communication  that  it  is  understood  as  a 
matter  of  course  that  each  Power  preserves  full  liberty  in  regard  to  the 
amount  which  it  pledges  itself  not  to  surpass  for  a  period  of,  say,  three  years. 

Russia  herself  proposes  preliminarily  to  fix  the  amount  at  ten  per  cent, 
more  than  her  present  budget,  but  each  Power  might  choose  as  a  basis  for 
the  pledge  a  budget  increased  to  such  extent  as  might  appear  necessary  to  it, 
going  as  high  as  the  maximum  of  the  increases  announced  by  the  Powers. 

From  the  exchange  of  views  which  took  place  in  the  subcommission  it 
appears : 

1.  That  some  delegates  foresee  as  a  matter  of  fact  the  possibility  of 
accepting  fundamentally  the  Russian  propositions,  but  must  wait,  before 
expressing  themselves  permanently,  until  they  receive  instructions  from  their 
Governments. 

2.  That  the  majority  of  the  delegates  of  the  subcommission  did  not 
wish  to  express  themselves  to  this  effect,  since  in  the  first  place  constitutional 
difficulties  would  be  encountered  in  parliamentary  countries  against  pledging 
in  advance  the  budgetary  vote  of  the  legislative  assemblies. 

When,  finally,  after  a  prolonged  discussion,  it  appeared  impossible  to 
come  to  an  agreement  or  to  find  any  other  expedient  than  that  of  leaving 
the  question  unsettled,  the  president  Mr.  van  Karnebeek  proposed  that  the 
delegates  recommend  to  their  Governments  a  study  of  the  Russian  proposi- 
tions, which  would  enable  them  to  decide  at  a  subsequent  conference. 

As  this  proposition  did  not  meet  with  the  sanction  of  the  subcommission 
(5  votes  for,  5  against,  and  5  abstaining),  the  latter  had  to  take  a  vote  on  a 
motion  of  Captain  Scheine  having  in  view  extending  an  invitation  to  the 
delegates  to  obtain,  within  the  shortest  possible  time,  instructions  which 
should  enable  them  to  pass  in  a  conclusive  manner  before  the  end  of  the 
Conference  on  the  propositions  of  the  Russian  Government.  Seven  votes 
having  been  given  for,  one  against,  and  one  abstaining,  this  proposition  of 
Captain  Scheine  had  to  be  regarded  as  being  adopted ;  and  the  subcom- 
mission, having  thereafter  instructed  four  of  its  members  to  report  the  results 
of  the  deliberations  to  the  First  Commission,  the  undersigned,  constituting 
the  drafting  committee,  therefore  have  the  honor  to  state  that  the  opinion 
which  prevailed  in  the  subcommission,  while  not  implying  an  acceptance  of 
the  Russian  propositions,  does  not  preclude  the  hope  that  it  will  be  possible 
to  find  a  way  to  accomplish  the  purpose  of  introducing  "  a  halting  period  " 
in  naval  budgets. 


SIXTH  MEETING,  JUNE  30,  1899  32i 

It  remains  for  the  First  Commission  to  confirm  or  disapprove  by  its 
vote  the  afore-mentioned  proposition  of  Captain  Scheine. 

(Signed)         Bille. 

SOLTYK. 

Scheine. 

CORRAGIONI   d'OrELLI. 

[36]  The  President  states  that,  in  his  personal  judgment,  the  decision  which  the 
subcommission  has  reached  is  not  very  happy. 

Here  the  Conference  has  almost  reached  the  end  of  its  labors,  and  the 
Russian  propositions  have  been  known  for  a  long  time ;  if  the  delegates  have  been 
unable  to  obtain  precise  instructions  up  to  the  present  time,  it  surely  is  not  likely 
that  they  will  receive  any  during  the  short  time  remaining  before  the  conclusion 
of  our  labors. 

The  solution  reached  in  regard  to  the  question  of  armaments  on  land  would 
also  seem  to  him  to  be  the  best  with  regard  to  the  navy. 

Mr.  Bille,  taking  the  view  of  Mr.  Beernaert,  gives  the  following  explana- 
tion: 

The  committee  which  drew  up  the  report  which  you  have  just  heard  realizes 
the  fact  that  it  may  not  have  seemed  satisfactory  to  you  for  the  reason  that  it 
does  not  invite  the  First  Commission  to  express  itself  for  or  against  the  Russian 
propositions.  The  fact  is  that  in  the  subcommission  no  conclusive  argument, 
sufficient  to  adopt  or  to  reject  outright  the  propositions  of  the  Russian  delega- 
tion, was  presented. 

The  difficulty  was  encountered  of  fixing  the  naval  budgets  in  advance  for  a 
period  of  three  years  by  means  of  an  international  agreement. 

We  thought  that  this  difficulty  was  of  the  kind  which  ought  particularly  to 
be  dealt  with  by  the  Governments. 

It  may  be  that  they  will  hesitate  to  pledge  themselves  along  this  line;  it 
may  also  be  that  they  will  not  be  afraid  to  do  so.  It  was  for  this  reason  that 
the  subcommission  thought  it  would  have  to  confine  itself  to  leaving  the  question 
open.  If  the  difficulty  in  question  were  removed,  which  does  not  seem  impossible 
to  me,  it  would  be  necessary  to  examine  more  closely  and  elucidate  more  clearly 
the  very  procedure  by  which  the  Russian  Government  wishes  to  succeed  in  estab- 
lishing those  proportions  between  the  naval  budgets  from  which  should  auto- 
matically spring  the  limitation  of  expenses  which  is  after  all  the  purpose  which 
everybody  would  like  to  attain. 

Meanwhile,  we  did  not  wish  to  exclude,  even  if  it  were  only  out  of  courtesy 
toward  the  delegate  from  Russia,  the  possibility  of  some  Governments'  giving 
instructions  before  the  end  of  the  Conference ;  but  I  do  not  deem  this  eventuality 
probable,  and  I  therefore  do  not  hesitate  to  support  the  proposition  just  made 
by  the  honorable  president. 

Captain  Scheine  believes  he  is  certain  that  several  delegates  do  not  regard 
it  as  an  impossibility  to  reach  an  agreement  during  this  Conference  itself,  which 
would  be  a  very  fortunate  result.  The  obstacles  which  stand  in  the  way  of  a 
final  and  immediate  solution  of  the  question  are  principally  parliamentary  and 
budgetary  and  not  technical. 

The  President  persists  in  believing  that  Mr.  Scheine  is  laboring  under  illu- 
sions when  he  thinks  the  instructions  necessary  might  yet  arrive  before  the  end 
of  the  Conference. 


322  FIRST  COMMISSION 

Captain  Scheine  does  not  insist  that  they  await  the  arrival  of  these  instruc- 
tions and  he  endorses  the  proposition  of  his  Excellency  Mr.  Beernaert  to  the  end 
that  the  Commission  express  the  desire  to  have  the  Governments  proceed  them- 
selves to  make  a  new  and  thorough  study  of  the  question. 

This  proposition  is  adopted  without  dissent. 

On  the  proposition  of  the  President,  Mr.  van  Karnebeek  is  designated  as 
reporter  of  the  First  Commission  at  the  Conference.     (Assent.) 

Mr.  Raffalovich  proposes  to  have  printed  in  full  the  minutes  of  the  meeting 
of  June  26,  as  well  as  those  of  to-day,  June  30.     (Assent.) 

The  meeting  adjourns. 


SEVENTH  MEETING 

JULY  17,  1899 


Jonkheer  van  Karnebeek  presiding. 

The  President  takes  possession  of  the  chair  and  expresses  himself  as 
follows : 

Gentlemen  :     When,  on  the  eve  of  the  Conference,  we  found  ourselves 

so  fortunate  as  to  be  able  to  express  respectful  congratulations  to  His  Majesty 

the  Emperor  of  Russia,  we  certainly  did  not  think  that  during  the  course  of 

[37]   our  meetings  we  should  be  obliged  to  join  in  the  grief  of  His  Majesty  and 

of  the  royal  family. 

I  am  sure,  gentlemen,  that  I  shall  be  expressing  a  sentiment  which  you  all 
have  in  your  hearts  and  which  is  shared  by  all  the  members  of  the  Conference, 
if  I  pay  at  the  beginning  of  this  meeting — the  first  held  since  the  sad  event — 
the  tribute  of  our  profound  and  respectful  sympathy  in  the  grief  caused  His 
Majesty  the  Emperor,  the  august  imperial  family,  and  the  whole  Russian  people, 
by  the  death  of  His  Imperial  Majesty  the  Hereditary  Grand  Duke. 

As  vice  president  of  the  Conference,  I  take  the  liberty  to  request  our  honor- 
able president,  who  is  now  present,  to  kindly  act  as  the  intermediary  to  express 
to  his  illustrious  sovereign  the  humble  and  sincere  condolences  of  the  Con- 
ference. 

His  Excellency  Mr.  Staal  expresses  his  deep  gratitude  at  this  testimonial 
of  sympathy  in  the  painful  circumstances  through  which  the  imperial  family 
is  passing;  he  will  hasten  to  convey  to  his  august  master  the  condolences  which 
have  been  expressed,  in  the  name  of  the  Conference,  in  such  lofty  terms  by  the 
honorable  vice  president. 

The  President  states  that  his  Excellency  Mr.  Beernaert  has  been  prevented 
from  responding  to  the  call  made  to  him,  other  duties  of  great  importance  retain- 
ing him  in  Belgium. 

He  adds  that  in  the  absence  of  Mr.  Beernaert  he  will  be  the  one  to  have  the 
honor  of  taking  his  place  to-day. 

He  appeals  to  the  indulgence  of  the  Commission,  for  he  will  have  to  perform 
double  functions,  that  of  president  and  of  reporter ;  he  gives  assurance  that  the 
latter  capacity  will  not  affect  his  impartiality  as  president. 

The  order  of  the  day  embodies  in  the  first  place  an  examination  of  the  minutes 
of  the  last  meeting,  which  have  been  printed  and  distributed. 

As  no  one  has  formulated  any  observations,  the  minutes  are  adopted. 

The  President  places  under  discussion  the  draft  of  the  report  which  will  be 
presented  to  the  Conference  in  the  name  of  the  First  Commission. 

It  is  decided  that  the  four  divisions  thereof  shall  be  discussed  successively. 

The  President  opens  the  discussion  on  the  first  part  of  the  report. 

323 


324  FIRST  COMMISSION 

Mr.  van  Karnebeek  observes  that  he  took  the  liberty,  with  a  view  to  securing 
a  better  wording,  of  sHghtly  changing  the  text  of  the  three  points  in  regard  to 
which  it  was  possible  for  the  Commission  to  come  to  an  agreement. 

After  an  exchange  of  views  between  Colonel  Gross  von  Schwarzhoff, 
Colonel  Gilinsky,  Count  de  Macedo,  General  den  Beer  Poortugael,  and  the  Re- 
porter, it  is  decided  to  restore,  as  regards  the  three  points  of  the  first  part  of  the 
report,  the  text  as  it  was  voted  for  by  the  Commission.  The  delegate  from 
Germany  particularly  observed  that  in  his  opinion  the  original  wording  expressed 
the  technical  sense  more  exactly. 

Mr.  Beldiman  asks  that  a  statement  be  made  in  the  report,  in  parentheses,  of 
the  names  of  the  Powers  which  voted  against  the  propositions  or  which  refrained 
from  voting. 

Count  de  Macedo  sees  no  objection  to  this  proposition,  but  in  case  it  is 
adopted  he  would  also  like  to  have  indicated  the  reasons  for  which  he  abstained 
from  voting  to  prohibit  the  use  of  expansive  bullets. 

Captain  Mahan  expresses  the  same  desire  in  regard  to  shells  with  asphyx- 
iating gases. 

The  President  states  that  the  request  of  Mr.  Beldiman  and  Count  de 
Macedo  tends  to  produce  once  more  the  minutes  of  the  Commission,  which  is  not 
the  object  of  the  report. 

Mr.  Raffalovich  is  of  the  same  opinion,  and  he  adds  that  the  reports  of  Gen- 
eral DEN  Beer  Poortugael  and  Count  Soltyk  are  sufficiently  explicit  and  easy 
to  consult  in  order  that  Mr.  Beldiman  may  find  satisfaction  therein. 

Mr.  Beldiman  would  like  at  least  to  have  mention  made  of  the  date  of  the 
meetings  at  which  the  votes  were  cast. 

Although  the  first  two  points  of  this  part  of  the  report  do  not  appear  to  be 
of  very  great  importance  and  although  unanimity  was  lacking  in  regard  to  the 
last  two,  the  Reporter  thought  there  was  no  reason  for  the  Commission  to  neglect 
these  results. 

To  him  the  best  way  to  make  them  of  value  seems  to  be,  to  propose  to  the 
Conference  an  extension  of  the  Declaration  of  St.  Petersburg  of  November  29, 
1868,  to  the  three  points  in  question  for  a  period  of  five  years. 

Among  the  Powers  represented  at  the  Conference  there  are  a  certain  number 
which  did  not  participate  in  the  Declaration  of  St.  Petersburg. 

The  advantage  of  his  proposition  would  be  that  their  signatures  would  imply 
their  adhesion  to  the  Declaration  of  1868. 

By  applying  the  five-year  limit  to  all  three  points,  we  should  thus  in  a  certain 
[38]  measure  be  meeting  the  considerations  which  prevented  the  representatives 
of  two  Governments  at  this  Conference  from  joining  in  the  vote  in  regard  to 
expansive  bullets. 

Captain  Mahan,  Colonel  Gilinsky,  Mr.  Martens,  Mr.  Beldiman,  Captain 
Scheine,  and  Mr.  Bourgeois,  make  the  following  objections  to  the  proposition 
submitted  in  the  draft  report: 

As  regards  the  prohibition  of  the  use  of  projectiles  whose  sole  purpose  is  to 
spread  asphyxiating  or  deleterious  gases  and  the  use  of  expanding  bullets,  the 
term  of  five  years  substituted  instead  of  a  permanent  prohibition  would  change 
the  scope  of  the  decision  which  was  voted  for  by  the  Commission.  This  would 
therefore  be  a  new  proposition  which  would  have  to  be  voted  on  and  for  which 
new  instructions  would  be  necessary.     (Messrs.  Mahan  and  Scheine.) 


SEVENTH  MEETING,  JULY  17,  1899  325 

Colonel  Gilinsky  insists  that  the  prohibition  of  the  use  of  expanding  bullets 
should  continue  forever,  as  was  decided  several  times  by  the  subcommission  and 
the  Commission. 

The  consequence  of  the  proposition  would  be  to  change  the  character  of  the 
Declaration  of  St.  Petersburg,  which  was  considered  as  being  concluded  forever ; 
it  appears  difficult,  from  a  legal  standpoint,  to  induce  Powers  which  did  not  sign 
the  Declaration  of  St.  Petersburg  to  adhere  thereto  implicitly  and  incidentally  by 
signing  the  convention  which  will  be  the  result  of  the  Hague  Conference,  since 
the  St.  Petersburg  Declaration  has  not  been  discussed  here.  (Messrs.  Gilinsky, 
Martens,  and  Beldiman.) 

There  were  reasons  for  signing  an  agreement  in  perpetuity  with  regard  to 
certain  points  and  for  a  limited  period  with  regard  to  others,  since  it  was  neces- 
sary to  make  a  distinction  between  the  known  and  the  unknown. 

It  would  therefore  be  useful  to  maintain  the  original  texts  which  take  this 
difference  into  account.     (Mr.  Bourgeois.) 

The  Reporter  answers  that  it  is  a  question  of  presenting  to  the  Conference 
the  results  of  the  examination  of  the  Commission  in  the  form  of  a  Convention. 
If  the  St.  Petersburg  Declaration  is  not  taken  as  a  basis  by  extending  it  to  the 
three  points  in  question  for  a  period  of  five  years,  it  would  be  necessary,  since 
it  is  desired  to  adhere  strictly  to  the  three  votes,  to  have  three  different  conven- 
tions, and  it  would  seem  that  there  would  then  be  less  chance  of  arriving  at  a 
presentable  result. 

The  wording  proposed  by  him  in  no  wise  affects  the  force  or  duration  of  the 
engagements  assumed  in  the  St.  Petersburg  Declaration.  These  engagements  will 
not  be  limited  to  five  years.  This  limitation  in  the  proposed  formula  bears  only 
on  the  new  points  which  he  proposes  to  connect  with  this  Declaration. 

In  connecting  them  therewith,  the  new  engagements  will  be  placed  under  the 
regime  of  said  Declaration,  which  is  an  important  matter  as  regards  their  scope 
with  respect  to  non-signatory  Powers. 

The  President  now  reads  the  following  draft  proposed  by  Mr.  Martens, 
which  is  intended  to  serve  as  a  preface  to  the  engagement  to  be  undertaken. 

The  signatory  Powers,  being  animated  by  the  same  sentiments  which 
found  expression  in  the  St.  Petersburg  Declaration,  engage  themselves  for 
a  period  of ,  to : 

Captain  Mahan  deems  it  useless  to  speak  of  sentiments ;  it  is  a  question  of 
standing  on  practical  ground ;  he  therefore  proposes  the  following  f ormufa :  "  The 
signatory  Powers  declare etc." 

At  the  initiative  of  Mr.  Bourgeois,  seconded  by  Mr.  Raflfalovich,  the  Presi- 
dent proposes  to  submit  to  the  Conference  the  three  texts  as  voted  on  by  the 
Commission  and  to  entrust  to  the  Committee  the  final  wording  of  the  Convention 
to  be  concluded. 

This  proposition  is  adopted. 

Captain  Siegel  deems  it  useful  to  call  attention  to  the  fact  that  in  the  vote 
relating  to  the  prohibition  of  projectiles  whose  sole  purpose  is  to  spread  asphyx- 
iating gases,  several  delegates,  including  himself,  while  the  vote  is  represented 
in  the  report  as  being  adopted  without  reservation  by  all  the  delegates,  voted  in 
the  affirmative  only  on  condition  that  there  should  be  unanimity. 


326  FIRST  COMMISSION 

His  Excellency  Sir  Julian  Pauncefote  says  that  as  a  matter  of  fact  fourteen 
delegates  were  in  this  situation. 

The  President  replies  that  the  vote  in  question  took  place  in  the  subcommis- 
sion,  whereas  the  report  should  be  based  on  what  took  place  at  the  plenary  session. 

Count  de  Macedo  thinks  that  the  word  "  sole  "  was  inserted  by  mistake  in 
the  text  of  the  report.  He  cites  particularly  a  passage  of  the  report  of  General 
DEN  Beer  Poortugael  of  the  first  subcommission. 

The  Reporter  as  well  as  several  delegates  observe  that  the  first  subcommission 
concerned  itself  only  incidentally  with  projectiles  spreading  deleterious  or 
[39]  asphyxiating  gases,  but  that  the  second  subcommission  considered  the 
question  amply. 

Captain  Mahan  and  Captain  Scheine  say  that  the  word  "  sole  "  was  inserted 
purposely. 

The  President  submits  to  discussion  the  second  part  of  the  report,  which  is 
adopted  after  a  short  discussion  between  General  den  Beer  Poortugael,  who  asks 
for  the  omission  of  the  word  "  perhaps  "  in  the  second  to  the  last  sentence,  and 
Colonel  Gross  von  Schwarzhoff,  who  insists  on  the  maintenance  of  this  word. 

General  den  Beer  Poortugael  withdraws  his  request. 

The  President  places  the  third  part  of  the  report  under  discussion. 

Colonel  Gross  von  SchwarzhofF  is  not  certain  that  the  vote  of  the 
Commission  on  the  conclusions  of  the  technical  committee  is  indicated  with 
sufficient  precision  in  the  report. 

It  would  be  well  to  state  plainly  that  the  Commission  unanimously  accepted 
the  terms  of  the  report  presented  by  the  technical  committee  in  regard  to  the 
Russian  proposition. 

The  President  asks  Mr.  Gross  von  Schwarzhoff  whether  he  has  a  new 
wording  to  propose. 

The  delegate  from  Germany  replies  that  he  has  not  prepared  any. 

Colonel  Gilinsky  observes  that  everybody  is  not  agreed  with  the  conclusions 
of  the  technical  committee  and  that  the  resolution  of  Mr.  Bourgeois  was  accepted 
unanimously. 

An  exchange  of  views  takes  place  between  Colonel  Gross  von  Schwarz- 
hoff, Mr.  van  Karnebeek,  Mr.  Bourgeois,  and  Mr.  Beldiman  on  the  conditions 
under  which  the  Commission  accepted  the  conclusions  of  the  technical  committee 
and  the  addition  to  the  text  as  proposed  by  Mr.  Bourgeois  in  the  previous  meet- 
ing. It  is  shown  from  this  exchange  of  views  that  the  Commission  unanimously 
adopted  the  terms  of  the  report  of  the  technical  committee,  as  well  as  the  reso- 
lution formulated  by  Mr.  Bourgeois  at  the  preceding  meeting,  which  was  sepa- 
rately put  to  a  vote  by  Mr.  Beernaert. 

Mr.  Bourgeois,  in  order  to  give  satisfaction  to  the  wishes  expressed  in 
various  quarters,  proposes  to  word  this  part  of  the  report  as  follows : 

Consequently,  after  unanimously  adopting  the  propositions  of  the  tech- 
nical committee,  the  Commission  adopted  likewise  unanimously,  in  order  to 
interpret  this  idea,  the  resolution  proposed  to  it  for  the  purpose  by  the  first 
delegate  from  France. 

The  proposition  of  Mr.  Bourgeois  is  adopted. 

Mr.  Beldiman  proposes  that  the  names  of  the  delegates  who  formed  part  of 
the  technical  committee  be  added  to  the  report. 


SEVENTH  MEETING,  JULY  17,  1899  327 

Captain  Crozier  recalls  the  conditions  under  which  this  technical  committee 
operated.  The  members  took  part  in  the  work,  not  as  delegates  of  Governments, 
but  as  mandataries  of  the  subcommission  in  their  individual  technical  capacity. 
He  opposes  the  proposition  of  Mr.  Beldiman. 

Messrs.  Baron  Bildt  and  Abdullah  Pasha  expressed  themselves  in  the  satme 
way  as  Captain  Crozier. 

The  President  puts  the  proposition  of  Mr.  Beldiman  to  a  vote,  and  it  is 
adopted  by  12  votes  to  10,  with  one  abstention. 

Captain  Mahan,  on  behalf  of  the  United  States  delegation,  makes  the 
following  declaration : 

The  delegation  of  the  United  States  of  America  have  concurred  in  the 
conclusions  upon  the  first  clause  of  the  Russian  letter  of  December  30,  1898, 
presented  to  the  Conference  by  the  First  Commission,  namely,  that  the  proposals 
of  the  Russian  representatives  for  fixing  the  amounts  of  effective  forces  and 
of  military  and  naval  budgets,  for  periods  of  five  and  three  years  can  not  now 
be  accepted,  and  that  a  more  profound  study  upon  the  part  of  each  State  con- 
cerned is  to  be  desired.  But,  while  thus  supporting  what  seemed  to  be  the  only 
practicable  solution  of  a  question  submitted  to  the  Conference  by  the  Russian 
letter,  the  delegation  wishes  to  place  upon  the  record  that  the  United  States,  in 
so  doing,  does  not  express  any  opinion  as  to  the  course  to  be  taken  by  the  States 
of  Europe. 

This  declaration  is  not  meant  to  indicate  mere  indifference  to  a  difficult 
problem,  because  it  does  not  affect  the  United  States  immediately,  but  expresses 
a  determination  to  refrain  from  enunciating  opinions  upon  matters  into  which, 
as  concerning  Europe  alone,  the  United  States  has  no  claim  to  enter. 

The  words  drawn  up  by  Mr.  Bourgeois,  and  adopted  by  the  First  Com- 
mission, received  also  the  hearty  concurrence  of  this  delegation,  because  in  so 
doing  it  expresses  the  cordial  interest  and  sympathy  with  which  the  United  States, 
while  carefully  abstaining  from  anything  that  might  resemble  interference,  regards 
all  movements  that  are  thought  to  tend  to  the  welfare  of  Europe. 

The  military  and  naval  armaments  of  the  United  States  are  at  present  so 
small,  relatively  to  the  extent  of  territory  and  to  the  number  of  the  population, 
as  well  as  in  comparison  with  those  of  other  nations,  that  their  size  can  entail  no 
additional  burden  of  expense  upon  the  latter,  nor  can  even  form  a  subject  for 

profitable  mutual  discussion. 
{40]  The  third  part  of  the  report  is  accepted  by  the  Commission. 
The  fourth  part  of  the  report  is  adopted  without  discussion. 

His  Excellency  Mr.  Staal  proposes  to  express  to  the  reporter  the  thanks  of 
the  Commission  for  all  the  trouble  he  has  taken.     (Assent.) 

The  meeting  adjourns. 


EIGHTH  MEETING 

JULY  20,  1899 


Jonkheer  van  Karnebeek  presiding. 

The  minutes  of  the  previous  meeting  are  read  and  adopted. 

The  President  says  that  the  discussion  of  Parts  I  and  III  of  the  report,  which 
have  been  modified  in  accordance  with  the  decisions  of  the  Commission,  must 
be  resumed. 

The  reporter,  Mr.  van  Karnebeek,  says  that  the  remark  has  been  made  to 
him  that  the  vote  relating  to  the  prohibition  of  projectiles  whose  sole  purpose  is 
to  spread  asphyxiating  gases  was  given  unanimously  with  the  exception  of  one 
voice,  and  that  six  votes  of  the  majority  were  in  the  affirmative  only  on  condition 
of  there  being  unanimity.  He  recognizes  that  this  is  true,  but  nevertheless  he 
makes  an  urgent  appeal  to  the  United  States  delegation.  This  delegation  will  be 
the  judge  of  the  situation  and  will  see  whether  it  should  maintain  its  negative  vote 
and  thereby  prevent  unanimity  from  being  obtained. 

Captain  Mahan  says  he  is  afraid  to  begin  the  discussion  again.  He  would 
have  liked  to  reserve  that  until  the  plenary  session  of  the  Conference.  He  speaks 
in  the  name  of  the  United  States  delegation,  which  adopted  a  resolution  on  general 
principles  and  does  not  deem  it  logical  to  permit  the  use  of  submarine  and  sub- 
mergible  boats  and  to  prohibit  the  use  of  shells  filled  with  asphyxiating  gases.  It 
is  impossible  for  him  to  reverse  his  original  vote,  because  it  is  a  question  of 
principle. 

The  Reporter  thinks  it  is  better  to  come  to  a  conclusion  now  in  Commission 
than  to  return  to  the  question  in  Conference. 

Not  having  succeeded  in  modifying  the  stand  of  the  United  States  delegation, 
the  only  thing  remaining  is  to  change  point  2  of  Part  I  by  adding  at  the  end 
"  but  of  the  majority,  six  votes  were  in  the  affirmative  only  on  condition  of  there 
being  unanimity." 

Count  de  Macedo,  after  stating  that  he  made  a  mistake  in  the  preceding 
meeting  when  he  thought  that  the  word  "  sole  "  was  not  in  the  text  relating  to 
point  2,  explains  that  he  voted  "  yea  "  in  order  not  to  depart  from  the  almost 
unanimous  concert  on  a  very  secondary  matter,  although  he  is  convinced  that  the 
use  of  the  word  "  sole  "  has  the  eflFect  of  taking  all  the  force  away  from  the 
proposed  prohibition  and  even  of  causing  certain  resolutions  of  the  Conference 
to  be  regarded  in  a  less  favorable  light. 

A  discussion  participated  in  by  Captain  Mahan,  Colonel  Gilinsky,  Mr.  Beldi- 
man.  Captain  Scheine,  Colonel  Coanda,  and  the  Reporter  is  begun  on  the 
question  whether  the  last  paragraph  of  Part  I  shall  be  maintained. 

Following  observations  presented  by  his  Excellency  Count  Nigra,  Mr. 
RafFalovich,  Mr.  Motono,  Count  de  Macedo,  Mr.  Beldiman,  and  Mr.  Miyato- 

328 


EIGHTH  MEETING,  JULY  20,  1899  329 

vitch,  it  is  decided  that  the  Commission  shall  propose  to  the  Conference  a  decla- 
ration or  a  convention  on  each  point  separately. 
[41]   Being  consulted  on  the  three  points,  the  Commission  unanimously  votes  on 
the  first  one. 

On  the  second  point,  by  17  votes  (Germany,  Austria-Hungary,  Denmark, 
Spain,  France,  Italy,  Japan  [on  condition  of  unanimity],  Montenegro,  Nether- 
lands, Portugal,  Roumania,  Russia,  Serbia,  Siam,  Switzerland,  Turkey,  Bulgaria)  ; 
against  two  (United  States  and  Great  Britain). 

On  the  third  point  by  16  votes  (Germany,  Austria-Hungary,  Denmark,  Spain, 
France,  Italy,  Japan,  Montenegro,  Netherlands,  Roumania,  Russia,  Serbia,  Siam, 
Switzerland,  Turkey,  Bulgaria)  ;  against  two  (United  States  and  Great  Britain) ; 
and  one  abstention  (Portugal). 

The  President  says  that  account  will  be  taken  in  the  report  of  the  decisions 
which  have  just  been  reached. 

The  President  states  that  the  first  part  is  thus  settled. 

Part  III  is  adopted  after  substituting  the  words  "  with  the  exception  of 
Colonel  GiLiNSKY  "  in  place  of  the  words  "  without  counting  Colonel  Gilinsky, 
author  of  the  proposition." 

The  President  declares  the  report  adopted;  he  adds  that  the  labors  of  the 
Commission  are  terminated,  and  at  this  juncture  he  asks  that  the  Bureau  be 
allowed  to  prepare  the  minutes  of  this  meeting,  which  will  be  the  last.     {Assent.) 

The  meeting  adjourns. 


[42] 

FIRST  SUBCOMMISSION 

FIRST  MEETING 

MAY  26,  1899 


His  Excellency  Mr.  Beernaert  presiding. 

The  President  observes  that  the  fundamental  question  submitted  to  the 
examination  of  the  first  subcommission  may  be  expressed  in  the  following  words : 

Should  we  conventionally  waive  the  right  to  use  any  new  improvement  in  the 
art  of  war  and  forbid  the  adoption  in  armies  and  navies  of  any  new  firearms  and 
new  explosives,  as  well  as  of  more  powerful  powders  than  those  now  adopted  both 
for  guns  and  cannon  ? 

General  den  Beer  Poortugael  wonders  whether  it  would  be  possible  to  waive 
the  right  absolutely  to  use  any  invention  which  might  come  up.  This  would  be 
very  difficult,  for  a  new  invention  may  effect  savings,  instead  of  causing  new 
expenses.  In  case  of  an  international  understanding,  the  Netherlands  would  very 
willingly  join  in. 

Colonel  Gilinsky  makes  known  a  proposition  according  to  which  the  Imperial 
Government,  deeming  that  the  gun  now  in  use  in  all  armies  is  of  about  the  same 
caliber  and  quality,  proposes  the  fixing  of  a  term,  to  be  determined  upon,  during 
which  the  guns  now  in  service  shall  not  be  replaced  by  others.  Automatic  guns 
exist  at  present  only  as  a  proposition  and  have  not  been  adopted  anywhere.  It 
is  not  a  question  of  defending  new  inventions,  but  of  fixing  for  a  certain  time 
the  present  type  without  precluding  improvements  which  would  not  radically 
change  them  and  which  would  not  transform  the  present  gun  into  an  automatic 
gun. 

The  object  of  this  proposition  is  to  prevent  new  expenses. 

Captain  Ayres  d'Ornellas  asks  whether  this  prohibition  has  in  view  only 
the  guns  and  cannon  in  use,  or  whether  it  applies  likewise  to  firearms  which  are 
in  progress  of  adoption. 

The  President  supposes  that  nations  which  are  behindhand  could  come  up 
to  date  with  the  others. 

According  to  Colonel  Gilinsky  the  gun  is  about  the  same  in  all  the  armies. 
The  improvement  of  the  present  type  is  permitted,  the  only  thing  under  consid- 
eration at  present  being  the  gun  itself. 

Captain  Ayres  d'Ornellas  defines  the  question.  It  is  true  that  the  gun  is 
about  the  same  in  the  different  European  armies,  but  the  caliber  differs,  ranging 
between  six  and  eight  millimeters, 

331 


332  FIRST  COMMISSION:  FIRST  SUBCOMMISSION 

The  President  asks  whether  it  would  not  be  suitable  to  present  a  precise 
formula  as  to  the  minimum  caliber. 

General  den  Beer  Poortugael  proposes  that  the  types  of  guns  remain  the 
same  and  that  calibers  6,  7,  and  8  be  accepted  as  limits. 

In  the  general  discussion  of  the  second  proposition  of  the  Russian  circular. 
Captain  Crozier  declares  that  the  suggestion  to  prohibit  the  use  of  more  powerful 
powders  than  those  at  present  adopted  might  run  counter  to  one  of  the  principal 
objects  of  the  Russian  proposition.  Suppose  that  by  a  more  powerful  powder 
we  mean  a  powder  which  imparts  a  greater  velocity  to  a  projectile  of  a  given 
weight  or  the  same  velocity  to  a  heavier  projectile, — it  is  known  that  a  powder  is 
powerful  in  proportion  to  the  production  of  the  volume  of  gas  furnished  by  the 
temperature  of  the  combustion.  Now,  it  might  very  well  be  supposed  possible  to 
produce  a  powder  which,  by  furnishing  a  greater  volume  of  gas  at  a  lower  tem- 
perature of  combustion,  might  be  more  powerful  than  any  powder  now  in  use 
and  which  at  the  same  time,  by  reason  of  the  low  temperature,  would  strain 
[43]  the  gun  less,  which  would  enable  the  latter  to  be  kept  in  service  for  a 
longer  time.  To  forbid  the  use  of  such  a  powder  would,  by  preventing 
the  saving  to  be  effected  thereby,  hinder  the  beneficent  object  of  a  reduction  of 
military  expenses.  These  remarks  apply  not  only  to  the  gun,  but  are  made  in 
obedience  to  a  suggestion  of  the  president  that  it  would  be  well  to  expatiate  first 
on  the  more  simple  questions,  while  reserving  the  more  difficult  ones  for  sub- 
sequent discussions. 

Colonel  Kiinzli  asks  whether  it  would  not  be  well  to  prohibit  projectiles  which 
aggravate  wounds  and  increase  the  sufferings  of  the  wounded.  He  adds  that  he 
has  the  so-called  "  dumdum  "  bullets  in  view. 

At  the  request  of  the  President,  Mr.  Kunzli  will  bring  a  formula  to  the 
next  meeting. 

Mr.  den  Beer  Poortugael  favors  the  prohibition  of  inhumane  projectiles 
which  produce  incurable  wounds.  The  dumdum  bullets,  the  point  of  which  is 
very  soft,  the  casing  of  the  projectile  being  very  hard,  and  the  interior  being 
formed  of  a  softer  substance,  burst  in  the  body ;  the  entrance  is  thin  and  the  exit 
enormous.  These  ravages  are  not  necessary ;  it  is  sufficient  to  render  an  armed 
man  unable  to  serve  for  a  time,  and  it  is  useless  to  mutilate  him. 

The  Dutch  Government  authorized  the  General  to  ask  the  absolute  prohibition 
of  the  use  of  dumdum  bullets  and  similar  projectiles. 

The  President  observes  that  the  proposition  of  the  Dutch  Government  is  but 
an  extension  of  the  principle  endorsed  at  St.  Petersburg  in  1868. 

General  Sir  John  Ardagh  says  there  must  be  a  misunderstanding,  as  the 
dumdum  bullets  do  not  entail  the  consequences  attributed  to  them,  being  bullets 
like  other  ones — ordinary  projectiles. 

The  President  observes  that  there  ought  to  be  concrete  formulas  in  order  to 
approach  practically  the  various  aspects  of  the  problem. 

There  is  established  an  exchange  of  views  on  the  proposition  formulated  by 
Colonel  GiLiNSKY,  during  the  course  of  which  the  following  declarations  were 
obtained : 


FIRST  MEETING,  MAY  26,  1899  333 

Germany 

The  question  will  be  very  difficult  to  settle ;  we  are  ready  to  take  part  in  the 
discussion  and  to  take  everything  ad  referendum,  but  we  have  no  proposition  to 
present. 

United  States  of  America 

In  regard  to  the  question  of  agreement  not  to  adopt  new  small  arms  for  a 
term  of  years,  Captain  Crozier  stated  that  the  Government  of  the  United  States 
did  not  desire  to  limit  itself  in  regard  to  the  case  of  new  inventions  having  for 
object  the  increase  of  efficiency  of  military  weapons,  although  there  is  at  present 
no  question  of  change  of  small  arms. 

Austria-Hungary 

I  can  accept  the  discussion  only  ad  referendum,  as  the  delegate  from 
Germany  has  done.  However,  I  believe  that  the  Austro-Hungarian  delegation 
could  agree  to  the  proposition  not  to  change  the  present  gun  for  some  time; 
but  it  would  seem  to  be  very  difficult  to  determine  what  that  present  gun  is.  As 
a  matter  of  fact,  if  permission  is  given  to  improve  the  gun,  it  must  be  remarked 
that  even  a  very  slight  improvement  may  entirely  change  the  character  of  a 
weapon.  It  will  therefore  be  very  difficult  to  set  limits  in  this  matter.  It  would 
be  necessary,  furthermore,  to  know  whether,  as  was  mentioned  by  the  delegate 
from  Portugal,  a  gun  under  study  can  be  considered  as  a  present  gun.  Finally, 
I  repeat  that  I  can  not  accept  the  decisions  to  be  reached  otherwise  than  ad 
referendum. 

Belgium 

Count  de  Grelle  Rogier  declares  that  he  can  accept  the  formula  of  General 
DEN  Beer  Poortugael  as  regards  the  choice  between  calibers  6,  7,  or  8  of 
the  gun. 

Denmark 

I  have  no  special  instructions  from  my  Government ;  in  my  personal  opinion 
Denmark  will  not  change  her  present  gun  for  ten  years,  but  we  ought  to  have  the 
freedom  of  improving  the  ammunition,  etc. 

Spain 

Spain  agrees  on  principle  with  the  opinion  expressed  by  the  Austrian  delegate 
and  can  accept  the  proposition  of  Colonel  Gilinsky,  of  course  only  in  regard 
to  the  gun. 

[44]  France 

The  French  delesrate  asks  that  a  very  precise  form  of  wording  determine,  if 
possible,  the  limits  of  the  modifications,  improvements,  or  transformations  both 
of  the  guns  and  ammunition,  which  should  not  be  separated. 


334  FIRST  COMMISSION :  FIRST  SUBCOMMISSION 

Great  Britain 

Sir  John  Ardagh  declares  that  he  has  no  proposition  to  submit  on  the  ques- 
tion of  restriction  appHed  to  guns  and  that  he  will  accept  the  decision  of  the 
subcommission  ad  referendum. 

Italy 

General  Zuccari  observes  that  the  question  laid  down  by  Russia  pre- 
supposes that  the  guns  of  the  several  nations  differ  very  little.  Other  delegates 
have  already  observed  that  this  difference  is  not  so  slight;  as  a  matter  of  fact 
it  is  considerable.  General  Zuccari  would  be  willing  to  agree  to  the  French 
and  Austrian  proposition;  but  it  would  be  very  difficult  to  come  to  an  under- 
standing without  first  determining  the  principal  data  with  regard  to  the  weapon — 
the  standard  model  of  gun. 

Japan 

The  Japanese  delegation  is  ready  to  accept  ad  referendum  the  decisions  of 
the  Commission  provided  a  clear  and  precise  formula  can  be  presented  on  the 
question  under  discussion,  as  was  maintained  by  the  Austrian,  French,  and 
Italian  delegates. 

Netherlands 

The  Netherland  Government  can  accept  the  proposition  of  the  Russian 
Government  with  regard  to  rifles. 

Persia 

Persia,  being  convinced  that  the  Russian  propositions  are  entirely  humane, 
fully  shares  the  opinion  and  supports  the  proposition  of  the  Russian  Government 
to  decide  on  a  system  of  gun  for  five  or  six  years  as  a  trial. 

Portugal 

Ad  referendum. 

Portugal  adheres  to  the  opinion  expressed  by  Austria-Hungary,  backed  by 
France  and  Italy,  that  is,  that  it  will  be  necessary  to  make  a  very  precise  state- 
ment of  the  technical  data  of  the  gun  which  are  not  to  be  changed  during  a 
certain  period. 

ROUMANIA 

The  Government  of  His  Majesty  the  King  of  Roumania  is  very  favorable 
to  the  Russian  proposition,  the  purpose  of  which  is  to  maintain,  by  virtue  of  an 
international  understanding  and  for  a  certain  number  of  years,  the  types  of 
improved  guns  now  in  use  in  most  of  the  European  armies,  in  order  to  put  a 
stop  to  the  disastrous  competition  which  is  going  on  owing  to  the  periodic  and 
frequent  renewal  of  the  guns  in  the  various  nations. 

The  Royal  Government  would  therefore  agree  to  a  precise  and  practical 


FIRST  MEETING,  MAY  26,  1899  335 

solution  calculated  to  satisfy  the  idea  expressed  by  Colonel  Gilinsky  on  behalf 
of  the  Imperial  Government. 

Meanwhile,  I  can  take  only  ad  referendum  the  idea  expressed  in  regard  to 
the  gun  question. 

Russia 

Fixing  of  a  period  of  ten  or  five  years  during  which  the  guns  now  in  service 
shall  not  be  replaced  by  any  other  models.  It  is  agreed  that  the  automatic  gun 
exists  at  present  only  as  a  proposition  and  is  not  yet  adopted  anywhere.  The 
improvement  of  the  models  now  in  service  is  permitted  on  condition  that  the 
fundamental  type  shall  not  be  changed. 

[45]  Serbia 

The  delegate  from  Serbia  declares  that  Serbia,  still  possessing  at  the  present 
time  a  system  of  gun  which  is  obsolete,  is  about  to  replace  it  by  a  modern  model, 
and  can  not  on  its  part  accept  the  proposition  of  the  Russian  delegate. 

SlAM 

On  behilf  of  the  Siamese  Government,  Phya  Suriya  fully  adheres  to  the 
proposition  made  by  Colonel  Gilinsky  on  behalf  of  the  Russian  Government^ 
to  decide  that,  for  a  certain  number  of  years  to  be  determined,  the  guns  at  present 
in  use  in  each  nation  shall  not  be  changed. 

Sweden  and  Norway 

I  join  ad  referendum  in  the  opinion  just  expressed  by  the  representative 
from  Austria-Hungary  as  regards  the  gun. 

Switzerland 

The  delegate  from  Switzerland  takes  the  question  ad  referendum.  He  be- 
lieves that  the  Government  will  give  its  adhesion  to  an  agreement  concerning  the 
gun  if  a  precise  and  clear  wording  is  found. 

Turkey 

Abdullah  Pasha,  finding  no  limit  to  the  improvement  of  guns,  makes  the 
same  reservations  as  the  Austrian  delegate. 

Bulgaria 

Setting  of  a  period  of  five  to  ten  years  during  which  the  guns  now  in  use 
should  not  be  replaced  by  other  models. 

Improvements  in  the  models  now  in  service  would  be  permitted  provided  the 
fundamental  type  were  not  changed. 

It  is  agreed  that  automatic  guns  exist  at  present  only  as  a  proposition. 

The  President  calls  attention  to  the  extreme  difficulty  of  reaching  any  result 
unless  a  clear  and  precise  form  of  wording  is  proposed.    The  sense  of  the  Russian 


336  FIRST  COMMISSION:  FIRST  SUBCOMMISSION 

formula  seems  to  be  as  follows :  prohibition  of  new  firearms,  each  one  remaining 
free  to  adopt  the  guns  now  in  use. 

For  the  next  meeting  we  must  have  clear  and  precise  formulas,  in  order  to 
see  whether  we  can  reach  an  understanding  on  the  conventional  restrictions  to  be 
placed  during  five  years  on  the  type  of  gun  and  what  modifications  should  be 
permitted  in  regard  to  ammunition;  finally,  the  question  presents  itself  likewise 
in  regard  to  cannon.  Should  a  minimun  caliber,  weight  of  projectile,  and  initial 
velocity  be  fixed?  Should  the  number  of  shots  per  minute  be  restricted? 
Should  the  St.  Petersburg  Convention  be  extended  to  explosive  or  flattening 
bullets?    Should  automatic  loading  be  excluded? 

The  meeting  adjourns. 


SECOND  MEETING 

MAY  29,  1899 


His  Excellency  Mr.  Beernaert  presiding. 

Mr.  Raffalovich  calls  the  attention  of  his  colleagues  to  the  absolute  necessity 
of  observing  the  fullest  secrecy  in  regard  to  the  communications  given  and  the 
documents  distributed. 

Colonel  Count  Barantzew  reads  the  following  Russian  propositions : 

[46]  Russian  propositions  for  the  modification,  improvement  or  transformation 
which  may  be  made  in  guns  within  a  period  of  time  to  be  discussed 

1.  The  minimum  weight  of  the  gun  shall  be  4  kg. 

2.  The  minimum  caliber  shall  be  6)^  mm. 

3.  The  weight  of  the  bullet  shall  not  be  less  than  10^  grams. 

4.  The  initial  velocity  shall  not  exceed  720  meters. 

5.  The  rapidity  of  fire  shall  be  kept  at  25  shots  per  minute. 

6.  It  is  understood  that  explosive  or  expansive  bullets,  as  well  as  automatic 
loading,  are  prohibited. 

General  den  Beer  Poortugael  communicates  the  text  which  he  prepared  with 
the  authorization  of  the  Dutch  Government. 

The  nations  agree  not  to  use  in  their  armies  or  fleets,  during  five  years 
from  the  date  of  signature  of  the  present  documents,  any  other  guns  than 
those  now  in  use  or  under  consideration. 

With  respect  to  guns  under  consideration,  only  those  of  an  existing  type 
and  of  a  caliber  ranging  between  6  and  8  mm.  shall  be  allowed. 

The  improvements  allowed  shall  be  of  such  a  nature  as  not  to  change 
the  type,  caliber,  or  initial  velocity  now  prevailing. 

The  President  opens  up  the  discussion. 

Colonel  Count  Barantzew  says  he  has  been  authorized  to  submit  to  the  sub- 
commission  the  propositions  which  he  made  at  this  meeting,  but  Russia  would 
have  preferred  that  the  original  proposition  be  adhered  to.  It  is  out  of  deference 
to  the  desire  expressed  by  the  assembly  that  he  brings  a  new  text. 

Colonel  Gilinsky  observes  that  the  fundamental  idea  expressed  in  the  circular 
of  August  12,  1898,  is  that  of  a  possible  reduction  of  the  excessive  armaments 
which  are  weighing  on  the  nations ;  it  is  in  order  to  mitigate  the  burden  imposed 
on  the  taxpayers  that  the  Russian  Government  has  proposed  that  ea;ch  nation 
preserve  its  present  gun  and  avoid  the  new  expenses  incident  to  a  change;  the 
second  formula  eflFects  no  change  in  the  sense  of  the  first. 

General  den  Beer  Poortugael  adheres  to  the  idea  of  Colonel  Gilinsky. 

337 


338  FIRST  COMMISSION :  FIRST  SUBCOMMISSION 

He  deemed  it  necessary  to  propose  a  clause  which  might  be  accepted  while  re- 
maining within  the  most  general  terms  and  while  avoiding  more  precise  details. 
This  would  permit  small  improvements  without  modifying  the  type  in  use.  It 
will  be  all  the  easier  to  agree  on  the  gun  since  most  of  the  nations  now  have 
an  arm  with  which  they  may  be  satisfied  and  which  is  of  an  analogous  type. 

The  President  points  out  that  the  dominating  idea  is  the  same  in  both  Russian 
and  Dutch  propositions.  Only  the  first  specifies  more  fully,  while  the  latter  is 
more  general  in  this  way,  that  it  does  not  speak  of  the  caliber,  initial  velocity, 
weight  of  bullet,  etc. 

At  the  request  of  Mr.  Beldiman,  delegate  from  Roumania,  it  is  decided  that 
the  text  of  the  two  propositions  shall  be  printed  and  that  the  assembly  shall  give 
its  opinion  at  the  next  meeting. 

Colonel  Gilinsky  reads  the  proposition  of  the  Russian  Government  in  regard 
to  bullets : 

The  use  of  bullets  whose  envelope  does  not  entirely  cover  the  core  at 
the  point,  or  is  pierced  with  incisions,  and,  in  general,  the  use  of  bullets 
which  expand  or  flatten  easily  in  the  human  body,  should  be  prohibited,  since 
they  do  not  conform  to  the  spirit  of  the  Declaration  of  St.  Petersburg  of  1868. 

Colonel  Gilinsky  adds  that  there  exists  a  new  projectile  the  front  part  of 
which  is  hollowed  out,  so  that  there  is,  at  the  point  of  the  bullet,  an  empty  space 
between  the  core  and  the  casing. 

Colonel  Kiinzli  proposes  the  following  text: 

Prohibition  of  infantry  projectiles  such  as  have  the  point  of  the  casing 
perforated  or  filed,  and  whose  direct  passage  through  the  body  is  prevented 
by  an  empty  interior  or  by  the  use  of  soft  lead. 

The  object  which  he  has  in  view  is  to  diminish  the  useless  suflFering  of 
wounded  persons,  the  purpose  of  war  being  to  put  men  out  of  action  for  a  certain 
length  of  time  and  not  to  mutilate  them. 

The  President  asks  the  opinions  of  the  delegations  present. 

The  delegate  from  Germany,  Colonel  Gross  von  Schwarzhoff,  would 
prefer  the  Russian  formula  as  being  the  more  precise.  The  German  Government 
would,  of  course,  oflfer  no  objection,  but  Mr.  Gross  von  Schwarzhoff  takes 
the  question  ad  referendum. 

The  delegate  from  the  United  States,  Captain  Crozier,  thinks  his  Govern- 
ment will  endorse  the  ideas  of  Colonel  Gilinsky. 
[47]   The  delegate  from  Austria-Hungary,  Lieutenant  Colonel  von  Khuepach, 
accepts  the  Russian  proposition. 

The  delegate  from  Denmark,  Colonel  von  Schnack,  accepts  the  Russian 
proposition. 

The  delegate  from  Spain,  Count  de  Serrallo,  likewise. 

The  delegate  from  France,  General  Mounier,  accepts.  However,  he  asks 
that  the  wording  be  modified  in  order  to  avoid  the  difficulties  connected  with 
too  precise  a  definition,  which  might  be  evaded  by  reason  of  subsequent  inven- 
tions. He  proposes  that  we  confine  ourselves  to  the  use  of  the  term  "  expansive 
bullet." 

The  delegate  from  Great  Britain,  General  Sir  John  Ardagh,  accepts  the 
Russian  proposition  ad  referendum. 


SECOND  MEETING,  MAY  29,  1899  339 

The  delegate  from  Japan,  Mr.  Motono,  accepts  the  Russian  proposition. 

The  delegate  from  Italy,  General  Zuccari,  while  accepting  the  Russian  propo- 
sition as  a  principle  endorses  the  observations  of  General  Mounier. 

The  delegate  from  the  Netherlands,  General  den  Beer  Poortugael,  accepts 
the  Russian  proposition  with  the  Mounier  amendment. 

The  delegate  from  Persia,  General  Mirza  Riza  Khan,  accepts  the  Russian 
proposition. 

The  delegate  from  Portugal,  Captain  Ayres  d'Ornellas,  endorses  the  Russian 
proposition  with  the  Mounier  amendment. 

The  delegate  from  Roumania,  Mr.  Beldiman,  thinks  his  Government  will 
accept  the  Russian  proposition  as  amended  by  General  Mounier. 

The  delegate  from  Serbia,  Colonel  Maschine,  accepts  it  ad  referendum. 

The  delegate  from  Siam,  Mr.  Phya  Suriya,  accepts  the  Russian  proposition. 

The  delegate  from  Sweden  and  Norway,  Colonel  Brandstrom,  accepts  the 
Gilinsky-Mounier  proposition. 

The  delegate  from  Switzerland,  Colonel  Kiinzli,  after  withdrawing  his  text, 
accepts  the  Gilinsky-Mounier  proposition. 

The  delegate  from  Turkey,  General  Abdullah  Pasha,  accepts  the  Russian 
proposition. 

The  delegate  from  Bulgaria,  Major  HessaptchiefT,  accepts  the  Gilinsky- 
Mounier  proposition. 

General  Mounier  suggests  the  following  wording :  "  The  use  of  expansive 
or  dilatable  bullets  is  prohibited." 

Colonel  Coanda  observes  that  soft  bullets,  without  casing,  become  dilatable 
through  their  mechanical  effect.  He  proposes  to  mention  in  the  text  "  non-ex- 
plosive bullets  "  with  a  hard  casing  covering  the  whole  bullet. 

On  the  proposition  of  Colonel  Count  Barantzew,  the  subcommission  in- 
structs the  Russian,  French,  and  Roumanian  delegates  to  submit  a  final  text  to 
him  by  the  next  meeting. 

On  the  proposition  of  the  President,  the  subcommission  takes  up  the  ques- 
tion of  the  cannon. 

The  President  asks  whether  they  are  in  favor  of  stopping,  for  a  certain 
period  of  time  to  be  determined,  at  the  present  types  and  of  forbidding  themselves 
by  convention  to  make  any  improvement. 

Colonel  Gilinsky  recalls  that  the  object  of  the  Russian  propositions  is  to 
reduce  the  burden  which  is  weighing  down  on  the  peoples ;  it  would  be  desirable 
to  arrive,  as  regards  field  ordnance,  at  an  understanding  similar  to  that  sug- 
gested for  small  arms;  that  is,  that  the  present  cannon  should  not  be  changed, 
namely,  the  new  rapid  fire  guns  now  existing  in  several  armies,  allowing  countries 
which  are  behindhand  to  catch  up  with  the  others. 

Following  an  observation  by  General  Zuccari,  the  President  asks  whether 
it  is  agreed  that  countries  which  are  behindhand  shall  at  all  events  be  allowed 
to  improve  their  armament  in  order  to  bring  it  up  to  the  level  of  countries  which 
are  now  the  farthest  advanced. 

Mr.  Bihourd  remarks  that  this  way  of  putting  it  might  induce  greater 
expenditure  by  serving  as  an  incitement  to  improve  the  present  equipment; 
it  would  thus  be  contrary  to  the  economic  purpose  pursued  in  the  limitation  of 
armaments. 

The  President  calls  for  a  vote  on  the  question  whether  it  is  understood 


340  FIRST  COMMISSION:  FIRST  SUBCOMMISSION 

that  in  case  new  improvements  were  prohibited  conventionally  this  prohibition 
would  nevertheless  allow  all  to  adopt  the  most  improved  types  now  in  use. 
Thus,  the  most  backward  nations  could  place  themselves  on  a  level  with  the 
most  advanced  ones.  The  delegates  who  are  in  favor  of  this  will  vote  yea,  the 
others  nay. 

The  delegate  from  Germany  says  it  is  difficult  to  vote  owing  to  the  restric- 
tions imposed. 

The  delegates  from  the  United  States  of  America  vote  yea. 

The  delegate  from  Austria-Hungary,  after  stating  that  his  country  is  to 
change  its  cannon,  sides  with  the  delegate  from  Germany. 

The  delegate  from  Belgium  votes  yea. 
[48]   The  delegate  from  Denmark,  after  declaring  that  his  country  is  to  change 
its  equipment,  says  that  it  would  be  necessary  to  try  the  best  types,  but  that 
the  nations  which  possess  them  will  not  let  them  be  known.    It  would  be  neces- 
sary to  state  exactly  what  is  admissible  and  what  is  not. 

The  delegate  from  Spain  states  that  his  country  is  also  going  to  change 
its  equipment,  and  joins  in  the  opinion  of  Denmark. 

The  delegate  from  France  cannot  answer  either  yea  or  nay ;  Denmark  seems 
to  have  given  the  proper  opinion.  General  Mounier  does  not  know  the  best 
situation ;  there  is  a  secret  here  to  everybody. 

The  delegate  from  Great  Britain  says  that  his  Government  is  not  disposed 
to  accept  the  limitation  concerning  cannon. 

The  delegate  from  Italy  votes  yea. 

The  delegate  from  Japan  is  of  the  same  opinion  as  the  delegate  from 
Denmark. 

The  delegate  from  the  Netherlands  is  of  the  opinion  of  Colonel  Gross  von 

SCHWARZHOFF. 

The  delegate  from  Persia  sides  with  the  Russian  proposition. 

The  delegate  from  Portugal  votes  like  Denmark. 

The  delegate  from  Roumania  observes  that  it  is  impossible  to  treat  the  ques- 
tion of  cannon  like  that  of  small  arms,  and  he  sides  with  the  opinion  of  General 
Mounier. 

The  delegate  from  Russia  recalls  the  fact  that  he  has  already  pointed 
out  the  difference  between  the  question  of  the  gun  and  that  of  the  cannon. 
In  the  case  of  the  gun,  the  Great  Powers  are  in  possession  of  very  satis- 
factory types  which  are  much  alike.  This  is  not  the  case  with  the 
cannon. 

Colonel  Gilinsky  says  the  Russian  proposition  tends  to  the  acceptance  of 
the  best  cannon,  that  is,  the  rapid-fire  cannon. 

The  delegate  from  Serbia  votes  yea. 

The  delegate  from  Siam  votes  yea. 

The  delegate  from  Sweden  and  Norway  announces  that  in  his  country  the 
replacement  of  the  ancient  cannons  has  been  decided  upon.  Under  these  circum- 
stances, he  must  reserve  his  vote. 

The  delegate  from  Switzerland  says  that  the  most  advanced  countries  in 
the  way  of  ordnance  are  France  and  Germany.  The  rest  are  in  an  experimental 
stage.    He  will  not  vote. 

The  delegate  from  Turkey  makes  reservations. 

The  delegate  from  Bulgaria  asks  whether  a  more  improved  type  of  small 


SECOND  MEETING,  MAY  29,  1899  341 

arms  is  to  be  adopted,  and  whether  backward  nations  will  be  allowed  to  choose 
the  best  types  for  their  armament. 

Under  this  reservation  he  joins  in  the  proposition  of  Colonel  Gilinsky. 

In  consequence  of  this  vote  the  President  thinks  he  ought  to  lay  down  the 
question  as  to  the  principle  involved.  Should  the  nations  represented  at  the 
Conference  prohibit  themselves,  for  a  certain  period  of  time  to  be  determined, 
and  especially  for  purposes  of  economy,  from  modifying  their  ordnance  equip- 
ment, precluding  the  use  of  any  new  invention,  each  thus  preserving  full  freedom 
of  action  ? 

He  asks  the  opinion  of  the  delegates: 

Germany,  the  United  States,  and  Austria-Hungary,  nay;  Belgium  abstains 
from  voting;  Denmark,  Spain,  France,  Great  Britain,  Italy,  Japan,  the  Nether- 
lands, Portugal,  Persia,  and  Roumania,  nay ;  Russia  abstains  from  voting  (the 
delegate  from  Russia  observes  that  the  prohibition  would  apply  only  to  the  most 
advanced  countries,  the  others  having  the  freedom  to  choose  the  best  type)  ; 
Serbia,  Siam,  Sweden  and  Norway,   Switzerland,  Turkey,  and  Bulgaria,  nay. 

The  President  states  that  a  very  large  majority  is  hostile  to  any  limita- 
tion as  regards  cannon  and  that  on  this  point  likewise  there  is  no  use  for  dis- 
cussion. 

He  asks  whether  there  is  any  limitation  to  be  made  in  regard  to  powders. 

On  this  question  the  delegates  present  are  unanimously  in  favor  of  pre- 
serving freedom  of  action  for  each  nation  as  regards  the  use  of  new  loading 
powders. 

Colonel  Gilinsky  says  Russia  proposes  not  to  use,  for  field  artillery,  high- 
explosive  shells  (obus  brisants  on  a  fougasses)  and  to  limit  itself  to  the  existing 
explosives  without  having  recourse  to  the  formidable  explosives  employed  for 
sieges. 

Colonel  Gross  von  Schw^arzhoff  asks  whether  the  use  of  the  very  powerful 
explosives  which  have  been  adopted  in  some  armies  will  be  forbidden. 

The  President  says  that  such  is  really  the  scope  of  the  proposition  of 
Colonel  Gilinsky. 

To  the  question  whether  high-explosive  shells  shall  be  prohibited  in  field 
warfare,  ten  nations  (Belgium,  Denmark,  Netherlands,  Persia,  Portugal,  Serbia, 
Russia,  Siam,  Switzerland,  and  Bulgaria)  answer  yea. 

Eleven  nations  (Germany,  United  States,  Austria-Hungary,  France,  Spain, 
Great  Britain,  Italy,  Japan,  Roumania,  Sweden  and  Norway,  and  Turkey)  vote 
nay. 

To  the  question  whether  new  explosives  not  yet  used  should  be  prohibited, 
nine  nations    (Belgium,   Netherlands,   Persia,   Portugal,   Russia,    Serbia,   Siam, 

Switzerland,  and  Bulgaria)  voted  yea. 
[49]   Twelve   nations    (Germany,   United    States,    Austria-Hungary,    Denmark, 
Spain,  France,  Great  Britain,  Italy,  Japan,  Roumania,  Sweden  and  Norway, 
and  Turkey)  voted  nay. 

The  President  places  the  second  part  of  theme  No.  3  under  discussion, 
viz:  Prohibition  of  the  discharge  of  projectiles  or  explosives  of  any  kind  from 
balloons  or  by  similar  methods. 

General  den  Beer  Poortugael  reads  the  following  declaration: 

The  Government  of  the  Netherlands  has  authorized  me  to  support  this 
proposition. 


342  FIRST  COMMISSION:  FIRST  SUBCOMMISSION 

Does  it  not  seem  excessive  to  authorize  the  use  of  infernal  machines  which 
seem  to  fall  from  the  sky? 

I  know  well  that  when  one  is  obliged  to  wage  war  one  must  wage  it  as 
energetically  as  possible,  but  this  does  not  imply  that  all  means  are  permissible. 

At  the  Brussels  Conference  in  1874  it  was  decided,  in  Article  12  (which 
approximately  agrees  with  Article  11  of  the  Russian  preliminary  draft),  that  the 
laws  of  war  do  not  recognize  belligerents  as  having  an  unlimited  power  as  to  the 
choice  of  means  of  injuring  the  enemy,  and  in  Article  13  of  the  final  protocol 
of  that  Conference,  among  others,  the  following  things  are  notably  forbidden  in 
accordance  with  this  principle:  (a)  the  use  of  poison  or  poisoned  weapons;  (b) 
the  murder,  by  treachery,  of  individuals  belonging  to  the  hostile  nation  or  army. 
Now,  the  progress  of  science,  and  of  chemistry  in  particular,  is  such  that  things 
which  were  but  yesterday  most  incredible  may  be  realized  to-day.  We  may 
foresee  the  use  of  projectiles  or  other  things  filled  with  deleterious  or  soporific 
gases  and  hurled  from  balloons  among  troops,  placing  them  at  once  hors  de 
combat. 

General  den  Beer  Poortugael  wishes  to  scrupulously  eliminate  every  means 
which  resembles  perfidy,  and  he  endorses  the  Russian  proposition. 

Colonel  Gross  von  Schwarzhoff  says  it  is  necessary  to  state  in  voting 
for  the  proposition  it  is  not  desired  to  prohibit  the  use  of  mortars  or  other  high- 
firing  guns,  but  that  the  words  "  similar  methods  "  apply  solely  to  new  methods 
not  yet  invented  and  analogous  to  the  use  of  balloons.  Finally,  a  declaration  must 
be  made  as  to  whether  the  prohibition,  once  voted  for  and  accepted  by  the  Govern- 
ments, shall  remain  in  force  forever  or  only  for  a  period  of  time  to  be  determined, 
for  instance,  for  a  period  of  five  years,  as  was  proposed  for  small  arms. 

The  subcommission,  in  accordance  with  the  interpretation  of  the  delegate 
from  Germany,  adds,  in  order  to  remove  any  misunderstanding,  the  word  "  new  " 
between  the  words  "  methods  "  and  "  similar." 

Colonel  Gilinsky  says  that  in  the  opinion  of  the  Russian  Government  the 
present  different  ways  of  injuring  the  enemy  are  sufficient. 

On  this  question,  with  the  exception  of  the  delegate  from  Great  Britain  and 
with  the  reservation  of  the  delegate  from  Roumania  to  limit  the  understanding 
for  five  years,  the  subcommission  gives  a  unanimous  vote. 

The  meeting  adjourns. 


THIRD  MEETING 

MAY  31,  1899 


His  Excellency  Mr.  Beernaert  presiding.  _     _ 

The  minutes  of  the  previous  meeting  are  now  read. 

Captain  Crozier  observes  that  he  thought  he  was  voting  on  the  status  of 
the  question  and  not  on  its  merits  when  he  gave  an  affirmative  vote  regarding  the 
prohibition  of  backward  nations  to  improve  their  field  artillery.  He  would  have 
voted  nay  on  the  merits. 

After  this  rectification,  the  minutes  are  adopted. 

The  President  now  reads  the  draft  relating  to  bullets  as  adopted  by  the 
delegates  from  France,  Roumania  and  Russia. 

The  use  of  bullets  which  expand  or  flatten  easily  when  penetrating  the 
human  body,  such  as  bullets  with  a  hard  envelope  which  does  not  entirely 
cover  the  core  or  is  pierced  with  incisions,  should  be  prohibited. 

[50]  Lieutenant  Colonel  von  Khuepach  says  that  in  his  opinion  they  ought  to 
confine  themselves  to  proposing  a  provision  embodying  a  conventional  re- 
striction of  the  use  of  bullets  which  produce  unnecessarily  cruel  wounds,  without 
entering  into  details,  especially  as  it  would  be  impossible  to  entirely  avoid  mutila- 
tions; for  a  bullet  constructed  in  any  manner  will  cause  such  mutilations  if  it 
should  be  deformed  by  striking  on  a  rock  or  other  hard  object  before  striking  the 
human  body. 

General  Sir  John  Ardagh  agrees  with  the  Austrian  delegate,  but  he  asks  to 
add  a  few  words  regarding  war  against  savages.  Quite  a  large  number  of  nations 
are  interested  in  this  question. 

In  civilized  war  a  soldier  penetrated  by  a  small  projectile  is  wounded, 
withdraws  to  the  ambulance,  and  does  not  advance  any  further.  It  is  very 
different  with  a  savage.  Even  though  pierced  two  or  three  times,  he  does  not 
cease  to  march  forward,  does  not  call  upon  the  hospital  attendants,  but  continues 
on,  and  before  anyone  has  time  to  explain  to  him  that  he  is  flagrantly  violating 
the  decisions  of  the  Hague  Conference,  he  cuts  off  your  head. 

It  is  for  this  reason  that  the  English  delegate  demands  the  liberty  to  use 
projectiles  of  sufficient  efficacy  against  savage  populations,  and  he  endorses  the 
Austrian  draft. 

Mr.  Rafifalovich  believes  that  the  ideas  set  forth  by  Sir  John  Ardagh  are 
contrary  to  the  humanitarian  spirit  which  dominates  this  end  of  the  nineteenth 
century.  It  is  impermissible  to  make  a  distinction  between  a  savage  and  a 
civilized  enemy ;  both  are  men  who  deserve  the  same  treatment. 

Moreover,  to  have  two  kinds  of  projectiles,  one  for  savages  and  the  other 
for  civilized  peoples  would  be  complicating  the  armament.     It  is  possible  to 

343 


344  FIRST  COMMISSION:  FIRST  SUBCOMMISSION 

contemplate  the  case  of  soldiers  stationed  outside  of  Europe  and  armed  with 
bullets  for  use  against  savages,  who  would  be  called  upon  to  fight  against  the 
regular  troops  of  a  civilized  nation. 

They  would  then  have  to  have  two  kinds  of  cartridge  belts. 

Colonel  Gilinsky  says  that  the  small-caliber  bullet  will  not  stop  the  attack 
of  savages  merely  because  they  are  savages;  neither  will  it  stop  the  attack  of  a 
civilized  army,  this  being  the  effect  of  very  small  caliber.  In  fact,  a  severely 
wounded  man  can  continue  to  advance  for  some  time,  and  even  fight,  so  that 
this  is  an  argument  in  favor  of  bigger  calibers.  The  Russian  7^^  mm.  caliber 
as  well  as  the  Mauser  stop  an  attack  very  well.  By  constantly  diminishing  the 
caliber  too  small  a  caliber  is  reached,  and  hence  the  necessity  perhaps  of  using  the 
dumdum  bullet.  As  to  savages,  they  are  of  course  not  guaranteed  against  the 
use  even  of  explosive  bullets.  In  the  St.  Petersburg  Declaration  of  1868,  the 
contracting  Powers  decided  not  to  employ  these  bullets  in  wars  among  them- 
selves. It  is  evident  that  there  is  a  gap  in  the  St.  Petersburg  Declaration,  a  gap 
which  enables  not  only  dumdum  bullets  but  even  explosive  bullets  to  be  used 
against  savages. 

His  Excellency  Abdullah  Pasha  states  that  experiments  on  all  kinds  of 
animals  at  which  he  has  been  present  have  shown  the  same  result  with  the  small 
as  with  the  large-caliber  bullets. 

On  the  invitation  of  the  President,  Lieutenant  Colonel  von  Khuepach 
frames  his  proposition  as  follows : 

The  use  of  bullets  which  cause  uselessly  cruel  wounds  shall  be  prohibited 
by  convention. 

Before  submitting  the  two  propositions  under  consideration  to  a  vote,  the 
President  thinks  he  is  expressing  the  opinion  of  the  assembly  by  saying  that  no 
distinction  should  be  made  between  those  against  whom  the  fighting  is  done. 

Mr.  Raflfalovich  asks  that  priority  be  given  to  the  wording  of  General 
Mounier. 

The  President  proceeds  to  have  a  vote  taken  on  this  formula,  the  result 
being  as  follows : 

Nineteen  nations  decide  in  the  affirmative,  as  follows:  Germany,  United 
States,  Belgium,  Denmark,  Spain,  France,  Italy,  Japan,  Netherlands,  Persia, 
Portugal,  Roumania,  Russia,  Serbia,  Siam,  Sweden  and  Norway,  Switzerland, 
Turkey,  and  Bulgaria;  one  nation  (Great  Britain)  votes  in  the  negative;  and  one 
nation  (Austria-Hungary)  abstains  from  voting. 

The  subcommission  now  takes  up  the  question  of  small  arms. 

General  Mounier  declares  that  he  has  asked  instructions  regarding  the  text 
of  the  Russian  propositions.  Not  having  received  them  as  yet,  he  is  obliged  to 
reserve  his  answer. 

Colonel  Count  Barantzew  explains  that  the  dominating  idea  of  the  Russian 
propositions  is  to  retrench  military  expenditures  by  reaching  an  understanding 
in  fixing  the  type  of  small  arm  now  in  use,  while  allowing  backward  countries  to 
complete  their  armament.  The  Russian  delegate  would  like  to  have  a  return 
made  to  the  original  Russian  proposition,  for  the  very  preciseness  of  the  details 
contained  in  the  second  proposition  drawn  up  in  reply  to  the  desire  expressed 
by  the  subcommission  would  perhaps  necessitate  some  parleying  which  would 

have  little  chance  of  leading  to  any  result. 
[51]   General  den  Beer  Poortugael  after  stating  that  he  agrees  with  Colonel 


THIRD  MEETING,  MAY  31,  1899  345 

Count  Barantzew,  explains  that  it  is  for  the  same  reason  that  he  presented 
a  draft  couched  in  more  general  words. 

After  an  exchange  of  views  among  several  of  the  delegates,  the  President 
announces  that  he  has  just  had  communicated  to  him  a  text  which  is  more  or 
less  analogous  to  the  Russian  (Gilinsky)  proposition;  and  in  order  to  enable 
the  technical  delegates  to  reach  an  understanding  he  suspends  the  meeting. 

Upon  the  meeting  being  resumed,  the  following  text  proposed  by  General 
den  Beer  Poortugael  and  accepted  by  Colonel  Gilinsky  is  put  to  a  vote: 

The  nations  agree  to  use  in  their  armies,  for  five  years  from  the  date 
on  which  the  present  act  is  signed,  only  the  guns  (small  arms)  in  use  at 
the  present  time. 

The  improvements  permitted  shall  be  of  such  a  nature  as  not  to  change 
either  the  existing  type  or  caliber. 

Colonel  Gross  von  Schwarzhoff  does  not  think  the  proposition  can  be 
accepted,  for  it  enables  the  improvement  of  existing  guns  without  giving  a  clear 
and  precise  definition  of  the  latter.  It  would  be  very  difficult  to  determine 
what  improvements  could  be  adopted  without  constituting  as  a  whole  a  new  type 
of  gun.  What  changes  should  be  permitted?  Where  is  the  authority  who 
would  decide  these  questions?  In  case  of  doubt  it  would  be  necessary,  in  order 
honestly  to  carry  out  the  clauses  of  the  Convention,  to  make  the  new  model 
known  to  the  other  Powers  and  ask  them  for  their  consent  before  adopting  it. 
As  this  is  hardly  possible,  he  regrets  to  have  to  vote  against  the  proposition. 

It  is  the  same  with  the  United  States,  Austria-Hungary,  France,  Great 
Britain,  Italy,  Japan,  Portugal,  Serbia,  and  Turkey. 

The  following  voted  for  the  proposition:  the  delegates  from  Denmark, 
Spain,  Netherlands,  Persia,  Russia,  Siam,  Sweden  and  Norway,  Switzerland, 
and  Bulgaria,  the  latter  however  with  reservations. 

Major  Hessaptchieff  says  that  the  Bulgarian  delegation  understands  the 
proposition  of  the  delegate  from  the  Netherlands  as  follows :  Each  Power  whose 
armament  is  inferior  to  that  of  another,  shall  always  have  the  right  to  supersede 
its  gun  by  the  most  perfected  model  now  in  service  in  the  most  advanced  country 
from  the  standpoint  of  armament. 

It  is  already  an  inalterable  and  even  alphabetical  principle  in  the  military  art 
to  never  have  a  small  arm  which  is  inferior  to  that  used  by  a  neighboring 
country. 

Consequently,  in  order  that  the  proposition  of  the  delegate  from  the  Nether- 
lands may  be  practically  applied,  it  would  have  to  be  admitted  that  the  advantages 
and  ballistical  data  of  the  most  perfected  gun  now  in  use  should  not  be  exceeded 
by  any  of  the  Powers. 

It  is  only  under  this  condition  that  the  Bulgarian  delegation  will  accept 
ad  referendum  the  proposition  of  the  delegates  from  the  Netherlands. 

The  Delegate  from  Roumania,  referring  to  his  declaration  of  May  26, 
reserves  his  decision  and  abstains  from  voting. 

(Nine  yeas,  one  yea  with  reservation,  ten  nays,  and  one  abstention.) 

The  President  thereupon  puts  to  a  vote  the  Barantzew  text,  with  reserva- 
tion in  regard  to  the  final  paragraph. 

Colonel  Gross  von  SchwarzhofF,  while  doing  homage  to  the  skill  with 
which  Count  Barantzew  tried  to  remove  the  obstacles  in  the  way  of  a  general 
understanding,  fears  that  all  the  difficulties  are  not  yet  overcome. 


346  FIRST  COMMISSION:  FIRST  SUBCOMMISSION 

We  all  wish  to  make  savings  or  at  least  to  avoid  heavy  expenditures  such 
as  would  be  incident  to  the  adoption  of  a  new  gun.  But  we  can  not  renounce 
doing  this  unless  we  are  quite  certain  that  no  Power  will  improve  its  armament 
beyond  a  certain  measure. 

The  proposition  enumerates  what  it  is  believed  can  be  granted  as  a  limit 
in  the  improvements  permitted. 

The  delegate  from  Germany  asks  whether  it  is  really  useful  and  necessary 
to  establish  a  minimum  for  the  weight  of  the  small  arm. 

Besides  this  economic  question,  we  are  pursuing  humanitarian  purposes. 

Mr.  Gross  von  Schwarzhoff  believes  that  it  is  much  more  humane  to 
lighten  the  weight  which  the  soldier  must  carry  than  to  fix  a  minimum  for  the 
weight  of  a  part  of  his  armament.  It  is  true  that  everything  that  is  taken  away 
from  the  weight  of  the  gun  would  doubtless  soon  be  replaced  by  an  increase  of 
cartridges.  Then  it  would  be  necessary  to  clearly  explain  whether  it  is  a  question 
of  the  weight  of  the  gun  alone,  unloaded,  or  of  the  gun  when  loaded  and  provided 
with  a  bayonet.  In  the  first  the  German  delegate  recalls  to  his  military 
[52]  colleagues  that  several  guns  now  in  use  do  not  fulfil  the  condition  imposed. 
He  believes  these  are  the  Belgian,  Spanish,  Italian,  Norwegian,  Roumanian, 
and  German  guns.  Therefore,  by  prescribing  a  weight  of  4  kg.  we  should  be 
compelling  the  nations  to  make  undesirable  changes  in  their  guns. 

As  to  the  weight  of  the  bullet,  there  are  likewise  guns  in  use  whose  pro- 
jectiles remain  under  the  figure  indicated.  These  are  the  Norwegian  and  Rou- 
manian guns. 

The  delegate  from  Germany  willingly  grants  that  a  velocity  of  720  to  730 
meters  is  not  thus  far  exceeded  and  that  it  would  be  possible  to  stop  at  this 
figure;  but  the  initial  velocity  depends  at  least  as  much  on  the  powder  used  as 
on  the  system  of  the  gun,  the  weight,  and  the  form  of  the  projectile.  As  the  sub- 
commission  a  few  days  ago  reserved  the  liberty  for  each  to  adopt  new  powders,  it 
would  seem  logical  not  to  fix  the  initial  velocity.  For  otherwise  it  might  easily  be 
possible  to  invent  a  new  and  less  costly  powder,  more  durable  and  efficacious  than 
the  powder  now  in  use,  without  being  able  to  adopt  it  because  it  would  increase 
the  initial  force  beyond  720  meters. 

It  will  therefore  be  necessary  at  the  very  first  to  reverse  the  unanimous  de- 
cision reached  at  the  meeting  of  May  29. 

The  rapidity  of  fire  depends  no  less  on  the  skill  and  training  of  the  firer 
than  on  the  mechanism  of  the  gun.  In  prescribing  a  maximum,  it  will  therefore 
be  necessary  to  state  whether  it  is  an  average  rapidity  which  the  average  soldier 
shall  be  permitted  to  attain  or  a  rapidity  which  the  best  trained  men  shall  not 
exceed. 

He  believes  he  has  demonstrated  that  certain  conditions  do  not  sufficiently 
take  into  account  the  present  status  of  armament,  that  others  ought,  if  possible  to 
be  defined  with  more  precision,  and  that  a  condition  in  regard  to  initial  velocity 
would  amount  to  annulment  of  the  previous  vote.  All  these  reasons  compel  him, 
to  his  great  regret,  to  vote  against  the  proposition.  He  wishes  to  add  that  he  has 
expressed  only  his  personal  opinion ;  if  the  delegates  do  not  indorse  this  view  and 
if  they  agree  on  this  proposition  or  on  another  formula,  the  German  Government 
will  without  doubt  be  quite  ready  to  examine  it. 

The  delegate  from  the  United  States  votes  nay. 

The  delegate  from  Austria-Hungary  believes  that  it  is  impossible  to  settle 
the  question  by  means  of  an  affirmative  or  negative  vote.    As  he  already  had  the 


THIRD  MEETING,  MAY  31,  1899  347 

honor  to  state  at  the  meeting  of  May  26,  Austria-Hungary,  possessing  a  satisfac- 
tory type,  has  no  reason  for  changing  her  present  type  of  gun,  at  least  as  long 
as  it  is  not  inferior  to  that  of  other  Powers. 

For  this  reason  the  delegate  could  accept  the  proposition  of  a  restriction 
by  way  of  convention;  but  this  provided  it  settles  only  the  question  as  a  matter 
of  principle. 

Details  would,  in  his  opinion,  constitute  an  obstacle  to  any  convention. 
As  to  the  initial  velocity,  he  has  nothing  to  add  to  what  has  just  been  said 
by  Colonel  Gross  von  Schwarzhoff,  and  he  endorses  it  fully. 

As  to  the  other  points,  he  thinks  it  would  first  be  necessary  for  the  competent 
authorities  of  all  the  countries  represented  to  reach  an  understanding  on  the 
possible  limits  before  rendering  them  obligatory.  This  was  the  procedure  fol- 
lowed in  the  revision  of  the  Geneva  Convention.  Therefore,  to  his  regret,  he  will 
have  to  vote  nay. 

The  following  also  voted  nay:  United  States,  Belgium,  Denmark,  Spain, 
Italy,  Japan,  Portugal,  Serbia,  Siam,  Switzerland  and  Turkey. 

The  following  voted  yea:  Netherlands,  Persia,  Russia,  and  Bulgaria,  the 
latter  ad  referendum. 

The  delegate  from  France  declares  that  he  is  awaiting  instructions. 
The  delegate  from  Roumania  abstains  from  voting,  and  maintains  his  declara- 
tion made  on  the  subject  at  the  meeting  of  May  26 ;  inasmuch  as,  in  his  opinion, 
the  question  has  remained  in  exactly  the  same  state  since  that  day,  he  does  not 
deem  it  necessary  to  vote  either  in  the  affirmative  or  negative. 

Mr.  Raffalovich  asks  that  it  be  stated  that  the  second  Russian  draft  was 
submitted  to  the  assembly  in  response  to  the  desire  expressed  by  the  latter  to  have 
the  data  of  the  weapon  more  accurately  specified.  The  first  proposition  faithfully 
represented  the  idea  of  the  Russian  Government,  namely,  to  limit  the  expenditures 
by  fixing  the  present  armament. 

An  exchange  of  views  takes  place  on  paragraph  6  of  the  Barantzew  text. 
The  President  remarks  that  the  prohibition  embodied  in  the  St.   Peters- 
burg Declaration  is  limited  and  that  the  assembly  will  surely  be  in  favor  of 
generalizing  it.     (Assent.) 

Following  a  short  discussion,  it  is  agreed  to  add  the  word  explosive  to  the 
definition  of  the  bullet  whose  use  is  prohibited  (see  above  the  proposition  of 
General  Mounier,  which  was  voted  on  and  which  reads  thus  in  its  final  text:) 

The  use  of  explosive  bullets  and  of  those  which  expand  or  flatten  easily 
[53]  on  penetrating  the   human  body,   such  as  bullets  with   a  hard   envelope 
which  does  not  entirely  cover  the  core  or  is  pierced  with  incisions,  shall 
be  prohibited. 

After  a  few  explanations  concerning  the  definition  of  automatic  loading,  the 
question  of  the  conventional  prohibition  of  this  system  is  put  to  a  vote. 

The  delegates  voted  as  follows:  Nine  in  the  affirmative  (Belgium,  Denmark, 
Spain,  Netherlands,  Persia,  Russia,  Siam,  Switzerland,  and  Bulgaria)  ;  six  in  the 
negative  (Germany,  United  States,  Austria-Hungary,  Great  Britain,  Italy,  and 
Sweden  and  Norway.) 

The  following  refrained  from  voting:  France,  Japan,  Portugal,  Roumania, 
Serbia  and  Turkey. 

The  President  remarks  that  it  has  been  a  question  thus  far  only  of  the 


348  FIRST  COMMISSION :  FIRST  SUBCOMMISSION 

modes  of  destruction  by  means  of  firearms  and  new  explosives,  and  that  science 
might  borrow  others,  for  instance  chemistry  and  electricity. 

The  circular  of  Count  Mouravieff  does  not  explain  itself  directly  on  this 
point,  but  this  is  certainly  its  spirit.  He  asks  whether  the  subcommission  thinks 
it  can  declare  itself  competent  on  this  subject  or  whether  it  intends  to  reserve 
the  decision  of  the  question  for  the  First  Commission  or  the  plenary  Conference. 

The  assembly  decides  in  favor  of  the  latter  plan.  The  subcommission  ap- 
points as  reporter  General  den  Beer  Poortugael. 

The  meeting  adjourns. 


FOURTH  MEETING 

JUNE  7,  1899 


His  Excellency  Mr.  Beernaert  presiding. 

The  minutes  of  the  preceding  meeting  are  read  and  adopted. 

The  President  states  that  General  den  Beer  Poortugal  has  made  further 

attempts  to  reach  an  understanding  as  to  the  small  arms.     He  has  substituted 

the  following  wording  instead  of  the  text  first  distributed : 

For  a  period  of  five  years  from  the  date  of  the  present  act,  the  nations 
agree  not  to  replace  the  guns  now  in  use  in  their  armies  by  guns  of  any 
other  type. 

However,  they  do  not  forbid  themselves  making  any  improvement  or 
perfection  in  the  guns  now  in  use  which  may  appear  advantageous  to  them. 

The  nations  which  have  a  gun  of  an  antiquated  model,  that  is,  of  a 
caliber  above  8  mm,  or  having  a  magazine,  may  adopt  existing  models. 

General  den  Beer  Poortugael  delivers  the  following  address : 

Under  ordinary  circumstances  I  should  certainly  have  entertained  scruples, 
after  the  debates  and  decisions  of  this  high  assembly,  about  offering  a  new  propo- 
sition on  the  subject  of  small  arms.  But  as  the  task  which  we  have  to  pursue  is 
not  an  ordinary  one,  and  as  I  am  convinced,  fellow  delegates,  that  none  of  you 
is  less  imbued  than  I  with  the  imperious  duty  incumbent  upon  us  not  to  give  up 
until  we  have  settled  the  question  submitted  to  us,  I  am  afraid  that  I  would  offend 
you  should  I  ask  to  be  excused  for  involuntarily  causing  you  pain.  I  therefore 
prefer  to  enter  on  the  subject  at  once  and  explain  to  you  why  I  deemed  it  my 
duty  to  submit  to  you  the  proposition  which  you  have  in  your  hands. 

My  conscience  tells  me  that  we  ought  to  do  everything  possible  to  reach  an 
agreement  on  the  question  of  small  arms.  Of  all  the  questions  indicated  in  the 
first  four  points  of  the  Mouravieff  circular,  and  which  the  First  Commission  is 
assigned  the  mission  of  solving,  the  question  of  the  small  arm  is  obviously  the  one 
whose  solution  offers  the  least  difficulty.  For  you  know  that  almost  all  the 
armies  are  in  possession  of  good  guns  of  the  same  type  and  calibers  varying  only 
between  6,  7,  and  8  millimeters. 

Gentlemen,  it  is  my  belief  that,  not  only  from  an  economic  point  of  view, 
[54]  but  also  from  the  point  of  view  of  statesmanship,  which  fortunately  is 
the  same  for  every  State,  it  is  necessary  and  even  urgent  that  we  should  do 
something 

Whole  populations  in  every  civilized  land  expect  that  of  us ;  it  would  be  very 
sad  to  disappoint  their  hope. 

They  ask,  they  beseech  that  a  stop  shall  be  put  to  throwing  millions,  nearly 
billions,  into  the  gulf  of  incessant  changes,  which  are  made  so  rapidly  that 
sometimes  the  weapon  is  changed  three  or  four  times  before  it  is  used.    They  ask, 

349 


350  FIRST  COMMISSION:  FIRST  SUBCOMMISSION 

they  beseech  that  a  stop  shall  be  put  to  the  extravagant  expenditures  devoted  to 
the  implements  of  warfare,  so  that  satisfaction  can  be  given  to  the  social  needs 
which  are  growing  more  and  more  pressing  and  which,  without  money,  must 
remain  neglected.  They  ask,  they  beseech  that  we  stop,  if  only  for  a  time,  and  if 
only  to  take  breath,  in  this  frantic  competition  to  hold  the  record  for  military 
inventions. 

At  the  very  least,  let  us  try  to  agree  on  the  question  which  lends  itself 
most  readily  to  agreement;  to  do  otherwise  would  be  to  deceive  the  nations 
cruelly. 

Let  us  discard  all  distrust,  which  is  a  bad  counselor.  Let  us  not  forget  that 
in  this  very  question  of  muskets,  Russia,  which  made  the  original  proposition,  is 
equipped  at  present  with  a  musket  of  large  caliber,  that  of  7.62  millimeters,  while 
neighboring  States,  Sweden  and  Norway,  and  Roumania,  have  better  muskets  of 
a  caliber  of  6.5  millimeters.  This,  then,  is  an  evident  proof  of  disinterestedness — 
a  sacrifice,  if  you  will,  laid  on  the  altar  of  the  common  welfare. 

Let  us  not  forget  that  it  is  the  generous  thought  of  the  young  and  august 
emperor  of  the  largest  empire  in  the  world,  who  has  revealed  his  desire  for 
prolonged  peace;  that,  in  his  journey  in  Palestine,  another  emperor,  young, 
generous,  and  genial,  at  the  head  of  the  formidable  Power  of  Germany,  solemnly 
expressed  on  the  classic  soil  which  we  Christians  call  the  Holy  Land,  his  firm 
desire  of  maintaining  peace;  and  that,  as  all  the  world  knows,  the  Emperor  of 
Austria-Hungary,  the  illustrious  sovereign  who  lately  celebrated  his  jubilee  in 
circumstances  so  sad,  who  lives  only  for  the  welfare  of  the  peoples  whom  he 
governs,  is  animated  by  sentiments  equally  peaceful. 

Let  us  not  forget,  either,  as  the  honorable  president  of  the  Conference,  Mr, 
Staal,  has  said,  that  "  the  eagerness  with  which  all  the  Powers  have  accepted 
the  proposition  contained  in  the  Russian  circulars  is  the  most  eloquent  proof  of 
their  unanimity  with  peaceful  ideas." 

In  this  state  of  things  why  do  we  hesitate — we  who  have  met  here  to  give  a 
body,  so  to  speak,  to  these  ideas, — why  do  we  hesitate  to  do  the  minimum ;  that  is 
to  say,  to  agree  that  only  for  the  short  time  of  five  years  we  will  all  keep  the 
muskets  that  we  have  now,  except  that  those  States  which  have  inferior  muskets 
—■those  without  magazine — may  choose  any  existing  type? 

If,  gentlemen,  after  all  that  has  happened  and  is  expected,  this  Conference, 
proudly  announced  and  constituted,  and  unparalleled  in  history,  accomplished 
nothing  in  the  way  of  economies  so  ardently  desired — if  we  place  not  a  single 
restriction  on  the  ruinous  transformation  of  armaments,  we  shall  forge  weapon? 
for  the  enemy  common  to  all  Governments,  for  those  who  wish  to  revolutionize 
the  established  order  of  the  world  and  who  will  not  hesitate  to  scatter  among 
the  people  venomous  germs  and  a  doubt  as  to  the  sincerity  of  the  Governments 
whom  we  represent. 

Those  false  prophets  who  make  war  only  upon  each  other  will  say  to  the 
people :  "  Come  with  us  all  you  who  are  oppressed  and  who  ask  for  bread  and 
peace;  we  alone  can  give  them  to  you."  And  the  people  will  throw  themselves 
into  their  arms  and  will  become  their  prey. 

It  remains  for  me  to  justify  the  formula  proposed. 

Attack  has  been  made,  and  to  my  mind  justly,  on  the  details  (which  were 
demanded,  moreover)  of  the  second  Russian  draft;  they  are  not  to  be  found 
in  the  one  which  is  presented  to  you. 

It  has  been  said  that  it  was  going  too  far  to  consider  as  the  present  gun, 


FOURTH  MEETING,  JUNE  7,  1899  351 

even  the  gun  in  process  of  study;  in  the  present  formula  the  stage  of  study  is 
not  to  be  found. 

The  delegates  of  those  States  which  have  old-fashioned  firearms  have  voted 
against  the  preceding  propositions,  because  they  desire  to  have  the  option  of 
changing  their  guns  of  ancient  type.  The  present  draft  gives  them  every^satis- 
f action  in  allowing  them,  as  is  just,  to  choose  among  the  best  guns  in  existence. 

If  it  is  asked  what  is  the  present  gun,  I  answer  that  every  State  knows 
very  well  what  is  the  best  gun  now  in  use.  I  believe  at  first  that  we  might  leave 
out  improvements;  but  it  has  been  observed  and,  I  think,  with  reason,  that  that 
would  be  inadmisssible ;  it  has  indeed  happened  that  defects  of  mechanism  have 
come  to  notice  that  rendered  a  gun  dangerous  for  the  marksman.  That  is  why  I 
propose  that  every  improvement  be  allowed,  because  I  recognize  that  it  is 
[55]  very  difficult  to  lay  down  Hmits;  this  is,  therefore,  a  clear  and  precise 
definition. 

If  it  is  asked  how  we  can  control  the  matter  so  that  the  permitted  improve- 
ment or  perfecting  does  not  carry  with  it  a  change  of  type,  I  take  the  liberty  of  re- 
plying as  did  the  president  of  the  Brussels  Conference,  Baron  Jomini  :  "  It  would 
be  a  wrong  to  the  contracting  parties  to  imagine  that  they  could  have  the  intention 
of  not  abiding  by  their  agreement." 

Gentlemen,  it  is  with  nations  as  with  individuals.  Francis  I,  defeated  and 
made  prisoner  at  Pavia  by  Charles  V,  wrote  to  his  mother  from  the  Chateau 
of  Pizzeghettone,  these  memorable  words :  "  Madam,  all  is  lost  but  honor." 

He  did  not  cease  to  be  the  great  king,  when  he  had  regained  all  that  he  had 
lost,  because  honor  still  stayed  with  him.  But  far  different  would  it  be  to 
forfeit  an  oath  or  an  accepted  agreement,  for : 

Honor  is  like  an  isle  with  a  steep  and  landless  shore. 

When  once  it  has  been  lost,  it  cannot  be  regained  any  more. 

I  am  convinced,  then,  gentlemen,  that  to  be  sure  that  the  Governments  will 
evade  neither  the  spirit  nor  the  letter  of  the  agreement,  there  is  no  better  watch- 
man than  the  nation's  honor. 

Let  us  believe  it!  (Applause.) 

The  President  proposed  to  the  subcommission  that  it  decide  to  have  the 
remarkable  address  of  General  den  Beer  Poortugael  annexed  in  full  to  the 
minutes. 

Mr.  Raffalovich  suggests  that  it  be  printed  and  distributed  with  the  summary 
record  in  order  to  bring  the  General's  address  to  the  attention  of  the  Governments 
represented.     (Assent.) 

Colonel  Gilinsky,  in  the  name  of  the  Russian  delegation,  thanks  General 
DEN  Beer  Poortugael  for  the  hearty  support  that  he  has  brought  to  the  proposal 
of  his  Government. 

Colonel  Gross  von  SchwarzhofF  says,  that  as  a  simple  technical  delegate 
he  is  not  in  a  position  to  follow  General  den  Beer  Poortugael  into  the  domain 
of  statesmanship.  He  admits  that  after  all  the  efforts  made,  it  would  be  very 
desirable  to  arrive  at  an  agreement;  but  he  questions  whether  the  proposal  of 
the  Dutch  delegate  is  well  suited  to  bring  that  about.  The  technical  object  is  to 
realize  economies  or  prevent  new  expenditures  in  the  equipment  of  infantry,-^ 
now,  the  formula  of  General  den  Beer  Poortugael  permits  all  States  to  intro- 
duce improvements  in  their  muskets,  provided  that  they  do  not  change  their 


352  FIRST  COMMISSION:  FIRST  SUBCOMMISSION 

type.  One  might  foresee  the  case  of  a  great  Power  effecting  progress  along 
this  line;  even  with  very  restricted  modifications,  but  costly  ones,  it  would  be 
possible  to  produce  a  weapon  much  superior  to  the  existing  musket  and  this 
would  oblige  the  other  Powers  to  keep  pace  with  them. 

As  the  delegate  of  the  United  States  has  said,  there  are  improvements 
susceptible  of  bringing  considerable  expenditures  in  their  train,  and  when  these 
expenditures  are  made,  the  liberty  of  adopting  the  weapon  that  seems  the  best 
should  be  possessed  at  the  very  least. 

Moreover,  it  is  not  known  in  advance  whether  the  patterns  actually  in  use 
would  lend  themselves  to  the  changes  which  a  State  would  be  obliged  to  make 
in  view  of  the  improvements  adopted  elsewhere. 

The  period  fixed  at  five  years  would  probably  produce  a  double  expenditure ; 
first  for  the  improvements,  and  then  for  a  new  type  of  musket. 

In  voting  the  German  delegate  expresses  his  personal  opinion;  he  has  no 
instruction  from  his  Government. 

Dr.  Stancioff  says  that  the  Bulgarian  delegation,  whose  adhesion  is  certainly 
obtained  for  all  propositions  tending  to  lighten  budget  burdens,  should,  however, 
make  its  reservations  in  presence  of  the  limit  of  eight  millimeters,  which  General 
DEN  Beer  Poortugael  intends  to  impose  on  States  having  a  musket  of  old 
pattern.  Bulgaria,  using  a  caliber  of  eight  millimeters,  would  fear  being  kept 
to  this  caliber,  whilst  the  other  States  whose  present  armament  is  inferior  would 
have  the  option  of  adopting  a  smaller  caliber;  Major  Hessaptchieff,  second 
delegate  of  Bulgaria,  would  ask  that  every  State  should  be  able  to  change  its 
musket  in  order  to  put  itself,  in  respect  to  caliber,  on  the  level  with  the  best 
musket  in  use. 

Mr.  Miyatovitch  is  happy  to  be  able  to  support  the  opinion  so  eloquently 
expressed  by  General  den  Beer  Poortugael;  he  accepts  the  draft  proposed, 
suggesting,  however,  to  add  that  the  States  that  are  backward  in  armament  shall 
also  have  the  option  of  improving  their  musket. 

He  does  not  insist  on  this  amendment  in  view  of  the  declaration  of  the 
president,  that  the  first  paragraph  of  the  proposition  of  General  den  Beer 
[56]  Poortugael  safeguards  the  rights  of  backward  States  in  respect  of  the 
improvem.ents  that  they  may  introduce  into  their  new  muskets. 

General  den  Beer  Poortugael,  in  response  to  the  remarks  of  Colonel 
Gross  von  Schwarzhoff,  says  that,  without  doubt,  it  will  be  necessary  to 
make  some  expenditures,  if  it  is  wished  to  bring  changes  into  the  model  in  use, 
but  that  these  expenditures  will  never  be  so  considerable  as  they  would  be  if  the 
type  itself  were  being  changed. 

As  to  the  question  raised  by  Mr.  Stancioff,  the  Dutch  delegate  declares  that 
the  limit  of  eight  millimeters  should  be  kept;  besides,  great  States  like  France 
have  the  eight  caliber,  and  Russia  whose  caliber  is  very  near  eight  would  not 
have  made  the  proposal  of  keeping  the  musket  which  is  in  use  if  she  considered 
it  inferior. 

Colonel  Gilinsky  believes  that  the  Bulgarian  musket  is  not  inferior  to  that 
of  other  Powers. 

General  Sir  John  Ardagh  presents  some  observations  on  the  proposals  of 
General  den  Beer  Poortugael. 

He  sees  great  difficulties  in  realizing  through  a  convention  the  restrictions 
that  the  Dutch  delegate  desires  to  have  placed.  He  inquires  especially  whether 
it  would  be  contrary  to  the  terms  of  the  proposal  of  General  den  Beer  Poortu- 


FOURTH  MEETING,  JUNE  7,  1899  353 

GAEL  to  have  manufactured  in  the  State  arsenals  improved  muskets  and  to  keep 
them  stored  so  as  not  to  distribute  them  to  the  troops  except  in  case  of  war. 

Sir  John  Ardagh  then  points  out  another  difficulty,  that  of  control. 

For  these  reasons  he  cannot  give  his  adhesion  to  the  text  presented. 

Mr.  Raffalovich  is  of  opinion  that  General  den  Beer  Poortugael  has 
answered  in  advance  the  objection  that  Sir  John  Ardagh  raises  relative  to 
control.  Instead  of  furnishing  a  means  of  agreement,  the  question  of  control 
would  risk  creating  insurmountable  difficulties.  It  is  not  within  the  views  of  the 
Governments  to  raise  this  question.  The  guaranty  of  engagements  taken  resides 
in  the  good  faith  of  the  contracting  parties,  in  the  control  of  public  opinion. 

The  President  remarks  that  to  have  manufactured  and  to  preserve  in  storage 
improved  weapons  for  the  purpose  of  using  them  in  case  of  war  would  evidently 
be  inconsistent  with  the  sense  of  the  proposition  of  the  Dutch  delegate. 

Colonel  Gilinsky  declares  that  control  is  not  necessary;  it  does  not  exist 
even  in  the  case  of  commercial  conventions. 

According  to  Colonel  Gross  von  Schwarzhoff,  it  is  not  a  matter  of 
control  against  bad  faith ;  but  he  has  in  view  difficulties  that  might  arise  in  good 
faith  in  regard  to  the  question  of  what  were  merely  improvements  in  the  weapon 
and  what  were  radical  transformations. 

Who  will  decide  the  question  whether  there  is  a  new  type  or  an  improvement  ? 

The  President  proceeds  to  take  a  vote  on  the  proposition  of  General  den 
Beer  Poortugael. 

Germany  votes  nay. 

The  delegate  of  the  United  States  of  America  says  that  in  his  personal 
opinion  his  Government  will  make  no  objections,  but,  being  without  instructions, 
he  abstains  from  voting. 

The  delegate  of  Austria-Hungary,  awaiting  instructions,  likewise  abstains. 
As  to  his  personal  opinion,  he  has  several  times  had  the  honor  to  express  it.  In 
order  not  to  repeat  he  limits  himself  to  declaring  that,  not  having  general  instruc- 
tions on  this  subject,  he  has  brought  the  proposition  of  General  den  Beer 
Poortugael  to  the  attention  of  his  Government  with  a  request  to  give  him 
definite  instructions  on  this  point. 

He  should,  therefore,  abstain  from  voting  until  the  time  when  he  shall 
have  received  those  instructions. 

Denmark  votes  yea;  Spain  votes  yea;  France  awaits  instructions  and 
abstains;  Great  Britain  votes  nay;  Italy  votes  nay;  Japan  abstains,  awaiting  in- 
structions ;  Netherlands  votes  yea ;  Persia  votes  yea ;  Portugal  makes  reservation ; 
Roumania  votes  yea  with  reservation;  Russia,  Serbia,  Siam  and  Sweden  and 
Norway  vote  yea. 

The  delegate  of  Switzerland,  after  remarking  that  the  deciding  word 
would  be  pronounced  by  the  Great  Powers,  thinks  it  useless  to  take  a  vote  that 
is  without  useful  bearing.     For  this  reason  he  abstains. 

Turkey,  while  awaiting  instructions,  abstains. 

Bulgaria  abstains  ad  referendum. 

Consequently,  two  States  have  voted  nay;  nine  States  have  voted  yea;  nine 
States  have  abstained. 

Captain  Crozier  proposes  to  reopen  the  discussion  on  the  prohibition  of  the 
discharge  of  projectiles  from  balloons. 

Having  voted  affirmatively  (he  says)  for  the  prohibition  of  the  discharge 
J57J  of  projectiles  or  explosive  material  from  balloons,  or  by  similar  methods,  as 


354  FIRST  COMMISSION:  FIRST  SUBCOMMISSION 

it   appears  in  Article  3  of  the  circular  of   Count  Mouravieff  of  December 
30,  1898,  I  would  like  to  return  to  this  vote  and  to  examine  the  question  anew. 

I  beg  the  indulgence  of  the  assembly  for  speaking  a  few  words  in  support 
of  a  motion  which  may  seem  radical  in  the  presence  of  the  almost  unanimous 
vote  already  rendered. 

The  general  spirit  of  the  proposals  that  have  received  the  favorable  support 
of  the  subcommission  is  a  spirit  of  tolerance  with  regard  to  methods  tending 
to  increase  the  efficacy  of  means  of  making  war  and  a  spirit  of  restriction  with 
regard  to  methods  which,  without  being  necessary  from  the  standpoint  of  effi- 
ciency, have  seemed  needlessly  cruel.  It  has  been  decided  not  to  impose  any  limit 
on  the  improvements  of  artillery,  powders,  explosive  materials,  muskets,  while 
prohibiting  the  use  of  explosive  or  expanding  bullets,  discharging  explosive 
material  from  balloons  or  by  similar  methods. 

If  we  examine  these  decisions,  it  seems  that,  when  we  have  not  imposed 
the  restriction,  it  is  the  efficacy  that  we  have  wished  to  safeguard,  even  at  the 
risk  of  increasing  suffering,  were  that  indispensable. 

Of  the  two  cases  where  restrictions  have  been  imposed,  the  first,  the  pro- 
hibition of  making  use  of  certain  classes  of  bullets,  proceeds  exclusively  from  a 
humanitarian  sentiment,  and  it  is  therefore  reasonable  to  suppose  that  the  second 
has  its  t)asis  in  such  a  sentiment.  Now,  it  seems  to  me  difficult  to  justify  by  a 
humanitarian  motive  the  prohibition  of  the  use  of  balloons  for  the  hurling  of 
projectiles  or  other  explosive  materials.  We  are  without  experience  in  the  use 
of  arms  whose  employment  we  propose  to  prohibit  forever.  Granting  that  prac- 
tical means  of  using  balloons  can  be  invented,  who  can  say  that  such  an  invention 
will  not  be  of  a  kind  to  make  its  use  possible  at  a  critical  point  on  the  field  of 
battle,  at  a  critical  moment  of  the  conflict,  under  conditions  so  defined  and  con- 
centrated that  it  would  decide  the  victory  and  thus  partake  of  the  quality 
possessed  by  all  perfected  arms  of  localizing  at  important  points  the  destruction 
of  life  and  property  and  of  sparing  the  sufferings  of  all  who  are  not  at  the 
precise  spot  where  the  result  is  decided.  Such  use  tends  to  diminish  the  evils 
of  war  and  to  support  the  humanitarian  considerations  which  we  have  in  view. 

I  do  not  know  of  machines  thus  efficient  and  thus  humanitarian,  in  the 
incomplete  stage  of  development  in  which  aerostation  now  is ;  but  is  it  desirable  to 
shut  the  door  to  their  possible  introduction  among  the  permitted  arms  ?  In  doing 
so,  would  we  not  be  acting  entirely  in  the  dark,  and  would  we  not  run  the  risk 
of  error  inherent  in  such  a  manner  of  procedure?  The  balloon,  as  we  know  it 
now,  is  not  dirigible ;  it  can  carry  but  little ;  it  is  capable  of  hurling,  only  on  points 
exactly  determined  and  over  which  it  may  pass  by  chance,  indecisive  quantities 
of  explosives,  which  would  fall,  like  useless  hailstones,  on  both  combatants  and 
non-combatants  alike.  Under  such  conditions  it  is  entirely  suitable  to  forbid  its 
use,  but  the  prohibition  should  be  temporary  and  not  permanent.  At  a  later  stage 
of  its  development,  if  it  be  seen  that  its  less  desirable  qualities  still  predominate, 
there  will  still  be  time  to  extend  the  prohibition;  at  present  let  us  confine  our 
action  within  the  limits  of  our  knowledge. 

That  is  why  I  have  the  honor  to  propose  the  substitution  of  the  following 
text  for  the  text  already  voted : 

For  a  period  of  five  years  from  the  date  of  the  signature  of  this  act  it 
is  forbidden  to  employ  balloons  or  other  similar  means  not  yet  known  foi 
the  purpose  of  discharging  projectiles  or  explosives. 


FOURTH  MEETING,  JUNE  7,  1899  355 

The  President  observes  that  the  vote  taken  in  a  preceding  meeting  is  dis- 
posed of,  and  that  it  is  before  the  plenary  Commission  that  Mr.  Crozier  should 
take  up  the  question  again. 

Captain  Crozier  asks  that  his  motion  be  made  note  of  in  the  minutes. 

His  wish  is  granted. 

The  meeting  adjourns. 


FIFTH  MEETING 

JUNE  22,  1899 


His  Excellency  Mr.  Beernaert  presiding. 

The  minutes  of  the  fourth  meeting  are  read. 

General  Sir  John  Ardagh  asks  for  a  modification  of  his  vote  on  the  propo- 
sition of  General  den  Beer  Poortugael  concerning  the  musket  question.  In 
lieu  of  abstaining  he  votes  negatively. 

The  President  says  that  this  is  not  a  correction  of  the  minutes  but  a  change 
in  the  vote  of  the  British  delegation. 

He  supposes  that  there  is  no  objection  to  its  being  stated  in  the  minutes  of 
to-day's  meeting.     (Assent.) 

The  minutes  are  approved. 

The  President  remarks  that  the  report  of  General  den  Beer  Poortugael 
was  distributed  several  days  ago  in  proof  sheets  and  that  there  is  therefore  no 
reason  for  having  it  read ;  he  confines  himself  to  asking  the  delegates  to  indicate 
the  corrections  as  to  substance  that  they  think  should  be' made. 

Colonel  Coanda  asks  the  insertion  on  page  3,  18th  line  from  the  foot,  of 
the  following :  "  General  Mounier  proposes  simply  the  use  of  the  term  expmisive 
bullets." 

Colonel  Coanda  adds  that  in  supporting  the  Mounier  motion  it  should  be 
specified  that  the  bullets  should  be  with  a  hard  jacket  covering  the  entire  bullet. 

Moreover,  he  would  desire  that  the  following  declaration  be  added  to  the 
sixth  line  of  page  6 :  "  The  delegate  of  Roumania  abstained  because  in  his  opinion 
the  question  has  remained  exactly  in  the  same  stage  since  May  26,  the  date  of  his 
declaration." 

He  asks  to  substitute  for  the  words :  "  abstains  in  default,  etc."  the  following: 
**  referring  to  his  declaration  of  May  26,  reserves  his  decision  and  abstains." 

The  Delegate  of  Siam  asks  suppression  on  page  3  of  the  words :  "  and  Siam 
which  answers  affirmatively."    He  supports  the  opinion  of  the  majority. 

Major  Hessaptchieff  makes  the  following  declaration: 

In  his  report  General  den  Beer  Poortugael  stated  the  abstention  of  Bul- 
garia on  the  question  of  the  musket;  but  having  received  since  the  last  meeting 
the  instructions  of  his  Government  concerning  the  proposition  of  General  den 
Beer  Poortugael,  the  delegation  has  the  honor  to  declare :  that  in  consideration 
of  the  enthusiasm  that  all  the  Powers  bring  for  the  realization  of  the  humani- 
tarian intentions  and  magnanimous  views  of  His  Majesty  the  Emperor  of  Russia, 
and  in  order  to  affirm  in  like  manner  its  own  good-will,  Bulgaria  adheres  fully 
and  freely  to  the  last  proposition  of  General  den  Beer  Poortugael. 

The  President  has  record  made  of  this  declaration. 

Colonel  Gilinsky  explains  that  the  Russian  proposition  with  respect  to  the 
question  of  field  guns  has  been  submitted  to  a  vote  in  a  form  different  from  that 
which  it  originally  had. 

356 


FIFTH  MEETING,  JUNE  22,  1899  357 

In  short,  the  Imperial  Government  has  proposed  to  accept  the  rapid-firing 
gun  as  the  existing  type  and  to  forbid  improvements  for  a  determined  time.  He 
believes  that  the  rapid-firing  gun  that  exists  in  several  armies  is  no  longer  a 
secret.  It  is  adopted  already  in  Russia,  Germany,  France,  and  it  is  being  experi- 
mented with  in  other  countries. 

Colonel  Gilinsky  adds  that  the  Russian  proposition  tends  to  permit  the  whole 
world  to  accept  the  best  gun,  that  is  to  say,  the  rapid-firing  gun.  The  proposition 
actually  existing  which  has  been  voted  upon,  stipulates  on  the  contrary  that  there 
should  not  be  a  change  in  the  field  artillery  of  the  present  gun  and  that  the 
backward  countries  would  have  the  option  of  placing  themselves  on  a  level  with 
the  others.  He  emphasizes  the  difference  between  the  Russian  proposition  and 
the  text  put  to  vote,  especially  on  the  third  vote ;  "  to  prohibit  for  a  time  to  be 
determined  modification  of  armament  (cannon)  while  excluding  the  use  of 
every  new  invention." 

Under  these  circumstances  he  thought  he  should  abstain. 

The  President  says  that  this  explanation  of  the  Russian  delegate  will  be 
inserted  in  the  minutes. 

He  states  then,  that  no  other  correction  is  requested  and  declares  the  report 
of  General  den  Beer  Poortugael  adopted.     (Assent.) 

He  conveys  the  thanks  of  the  subcommission  to  the  reporter  for  his  excellent 
work.     (Assent.) 

The  meeting  adjourns. 


SIXTH  MEETING 

JUNE  26,  1899 


His  Excellency  Mr.  Beernaert  presiding. 

On  the  proposal  of  the  President  the  subcommission  decides  to  entrust  the 
examination  of  the  propositions  of  Colonel  Gilinsky  concerning  theme  No.  1  of 
the  MouRAViEFF  circular  to  a  committee  composed  of  Messrs.  Colonel  Gross 
VON  ScHWARZHOFF,  General  Mounier,  Colonel  Gilinsky,  General  Sir  John 
Ardagh,  Lieutenant  Colonel  von  Khuepach,  General  Zuccari,  Captain  Brand- 
STROM,  and  Colonel  Coanda,  to  which  will  be  added  Mr.  Raffalovich,  delegate, 
as  secretary. 

The  meeting  adjourns. 


358 


[60] 

SECOND    SUBCOMMISSION 
FIRST  MEETING 

MAY  26,  1899 


Jonkheer  van  Karnebeek  presiding. 

Jonkheer  van  Karnebeek  opens  up  the  meeting  and  appeals,  to  the  indulgence 
of  his  colleagues,  circumstances  having  called  him  to  the  presidency  in  spite  of 
the  fact  that  he  does  not  possess  any  special  knowledge  in  maritime  matters. 

He  is  of  opinion  that  it  would  be  useful  to  begin  by  naming  a  reporter, 
who  could  begin  taking  down  notes  right  away  without  being  prevented  from 
taking  part  in  the  discussion. 

The  subcommission  having  endorsed  this  idea  and  having  left  the  nomination 
of  a  reporter  to  its  president,  Jonkheer  van  Karnebeek  asks  whether  Count 
SoLTYK  would  be  willing  to  assume  this  office. 

The  subcommission  applauds  this  choice. 

Captain  of  Corvette  Count  Soltyk  accepts  this  appointment  and  asks  his 
colleagues  to  lend  him  their  kind  assistance. 

The  President  states  that  in  view  of  the  decision  reached  by  the  Commission 
in  plenary  session,  the  subcommission  will  in  the  first  place  have  to  examine 
whether  it  will  be  possible,  as  regards  navies,  to  prohibit  by  means  of  a  conven- 
tional arrangement  the  putting  into  use  of  new  firearms  (first  part  of  theme  2 
of  the  circular  of  December  30,  1898).  As  portable  firearms  are  of  comparatively 
little  importance  to  navies,  it  will  be  necessary  to  take  cannon  particularly  into 
consideration. 

Admiral  Pephau  deems  it  very  difficult  to  define  the  scope  of  this  question. 
What  is  to  be  meant  by  "  new  firearms  ?  "  Is  it  a  question  also  of  prohibiting 
transformations  ? 

The  President  thinks  that  the  prohibition  can  not  contemplate  modifications 
of  detail,  but  only  sufficiently  important  transformations  in  order  to  make  a  new 
instrument  of  war  of  a  certain  firearm. 

Captain  Scheine  likewise  thinks  that  the  expression  "  new  firearms  "  ought 
to  be  understood  as  meaning  an  entirely  new  type,  and  that  it  does  not  comprise 
transformation  and  improvements. 

Captains  Sakamoto  and  Mahan  ask  whether  a  "  new  type  "  means  a  type  not 
yet  invented. 

Admiral  Pephau  remarks  that  the  definition  of  Mr.  Scheine  but  lays  down 
the  question  in  other  terms.  What  is  a  new  type?  An  old  cannon  gradually 
modified  and  improved  becomes  a  new  type. 

Count  Soltyk  shares  this  opinion.  A  new  type  is  as  a  matter  of  fact  but  an 
old  type,  which  is  being  improved  daily. 

359 


360  FIRST  COMMISSION:  SECOND  SUBCOMMISSION 

Captain  Mahan  says  we  might  conceive  of  a  new  type  as  being  an  acquired 
notion,  and  examine  independently  the  question  as  to  whether  we  should  consent 
to  accept  the  prohibition  of  the  construction  of  any  of  them. 

Admiral  Fisher  is  of  opinion  that  each  country  wishes  to  use  the  best  weapon 
it  can  procure.  Any  restriction  placed  on  the  freedom  of  action  in  this  regard 
would  place  civilized  peoples  in  a  dangerous  situation  in  case  of  war  with  less 
civilized  nations  or  savage  tribes. 

Captain  Scheine  thinks  that  a  prohibition  for  an  indefinite  time  would 
affect  too  numerous  and  too  grave  interests.  Such  an  intention  never  entered  the 
mind  of  his  Government.  In  his  opinion,  it  would  be  proper  to  limit  the  prohibi- 
tion to  a  specified  and  not  too  long  period  of  time,  say  three  or  four  years.  More- 
over, existing  cannon  cannot  be  modified  to  any  considerable  extent  in  this 
interval. 

However,  by  proceeding  in  this  manner,  a  foint  of  departure  would  be  had. 
The  question  would  be  determined  and  would  take  form. 

The  President  is  of  opinion  that  this  proposition  is  of  great  importance,  and 

that  it  might  serve  to  put  an  end  to  the  ruinous  competition  in  which  the  nations 

are  engaged  in  the  manufacture  of  new  firearms,  which  competition  will 

[61]  never  come  to  an  end,  since  after  each  effort  they  find  themselves  again  at 

the  same  level. 

This  is  really  the  basis  of  the  idea  of  those  who  submitted  this  question  to 
the  deliberations  of  the  Conference.  Moreover,  the  only  effective  means  would 
perhaps  be  to  have  recourse  to  penal  clauses  against  the  inventors  of  new  means 
of  destruction. 

Admiral  Pephau  thinks  that  it  will  never  be  possible  to  prevent  inventors 
from  ruining  nations. 

Admiral  Fisher  says  that  these  inventions  serve  rather  to  hinder  and  retard 
warfare.  In  order  to  accomplish  what  Mr.  Scheine  proposes  it  would  be  neces- 
sary to  have  a  committee  of  "  control." 

But  would  the  nations  not  consider  such  a  *'  control "  as  an  assault  on  their 
sovereignty  ? 

Captain  Siegel  and  Admiral  Pephau  state  that  it  would  be  impossible  to 
establish  such  a  **  control."  There  is  no  starting  point,  for  one  thing,  and  then  the 
firearms  in  every  country  are  undergoing  transformation. 

The  President  asks  whether  it  is  proper  to  summarize  the  discussion  as  fol- 
lows :  "  however  desirable  it  may  be,  in  the  opinion  of  the  subcommission,  to  put 
an  end  to  the  competition  in  question,  the  question  appears  so  difficult  to  solve 
that  it  will  have  to  remain  in  the  state  where  it  now  is." 

Captain  Scheine  insists  on  his  proposition.  The  fixing  of  a  period  of  three 
or  four  years  will  promote  the  cause  without  jeopardizing  the  interests  involved, 
and  at  all  events  the  principle  of  the  thing  would  have  been  sanctioned. 

After  an  exchange  of  views,  from  which  it  is  found  that  the  subcommission 
thinks  that  the  question  should  be  more  thoroughly  explained  and  its  scope  more 
precisely  indicated,  Mr.  Scheine,  at  the  request  of  the  President,  declares  that 
he  will  endeavor  to  present  his  proposition  in  a  more  precise  form  at  the  next 
meetmg. 

The  second  question,  that  of  explosives,  is  now  taken  up. 

The  President  thinks  that  as  far  as  it  is  concerned  an  agreement  will  be 
established  more  easily. 

Admirals  Fisher  and  Pephau  observe  on  the  contrary  that  in  this  matter  the 


FIRST  MEETING,  MAY  26,  1899  361 

same  difficulties  are  here  as  in  regard  to  cannon :  it  is  the  starting  point  that  is 
lacking.  Moreover,  no  nation  will  consent  to  divulge  the  composition  of  the 
explosives  which  it  is  now  using. 

The  President  says  the  question  is  up  whether  it  is  necessary  to  take  as  a 
basis  the  explosives  adopted  up  to  the  present  by,  the  nations,  or  all  those  which 
may  be  considered  as  already  existing  or  known. 

Mr.  Rolin  is  of  opinion  that  before  all  else  it  would  be  important  to  know 
the  explosives  in  use.  He  observes  thereupon  that  the  use  of  explosives,  espe- 
cially for  the  small  nations,  constitutes  a  special  means  of  defense. 

If  the  consent  were  given  to  prohibit  their  use,  these  nations  would  be 
deprived  of  one  of  their  most  important  means  of  defense. 

Captain  Scheine  proposes  a  conventional  pledge  by  virture  of  which  the 
Governments  would  abstain  from  introducing  explosives  during  a  certain  period 
of  time. 

The  President  proposes  to  connect  the  suggestion  made  by  Mr.  Scheine 
to  the  analogous  motion  relating  to  firearms,  and  he  asks  Mr.  Scheine  to 
kindly  state  his  ideas  in  a  definite  manner  so  that  they  might  be  submitted  to  the 
examination  of  the  subcommission  at  a  future  meeting. 

Captain  Scheine  says  he  will  try  to  satisfy  the  request  of  Mr.  van  Karne- 

BEEK. 

The  President  proposes  to  pass  on  to  the  question  of  the  limitation  of  the 
use  of  explosives  of  formidable  force  already  existing. 

Admiral  Pephau  and  Captain  Tadema  think  it  would  be  desirable  to  deter- 
mine the  cases  in  which  the  use  of  these  explosives  will  be  permitted. 

His  Excellency  Count  von  Welsersheimb  backs  this  view. 

Captain  Scheine  is  of  opinion  that  it  will  be  necessary  to  take  a  pledge  not 
to  use  explosives  otherwise  or  in  other  cases  than  they  are  now  used. 

The  President  says  that  in  this  manner  the  question  is  laid  down  more 
precisely. 

Admiral  Pephau  expresses  doubts  as  to  the  possibility  of  assuming  an 
engagement  in  the  sense  indicated. 

Captain  Tadema  thinks  the  question  deserves  serious  examination. 

On  the  proposition  of  the  President,  the  discussion  is  postponed  to  the  next 
meeting. 

The  meeting  adjourns. 


[62] 

SECOND  MEETING 

MAY  29,  1899 


Jonkheer  van  Karnebeek  presiding. 

The  minutes  of  the  first  meeting  are  read  and  adopted. 

The  President,  after  asking  the  cooperation  of  the  naval  delegates  in  regard 
to  the  questions  of  a  technical  nature,  states  that  the  problem  of  limiting  naval 
armaments  has  two  objects  in  view: 

1.  A  need  of  economy:  to  decrease  the  burden  of  budgets. 

2.  A  need  of  humanity :  to  decrease  the  evils  caused  by  war. 

The  first  point  is  the  one  with  which  the  subcommission  must  concern  itself 
now.  The  President  invites  Mr.  Scheine  to  formulate  the  more  detailed  propo- 
sitions which  he  announced  at  the  last  meeting. 

Captain  Scheine  remarks  that  by  the  term  "  new  type  "  he  thought  he  had 
sufficiently  defined  his  first  proposition. 

In  view  of  the  doubts  expressed  by  some  of  his  colleagues  as  to  the  possibility 
of  determining  what  should  be  meant  by  a  new  type,  he  endeavored  to  formulate 
his  propositions  in  a  more  detailed  manner. 

He  recalls  the  three  great  transformations  which  cannon  have  undergone : 
first  that  of  smooth  bore  to  rifle  cannon;  then  that  of  muzzle  loaders  to  breech 
loaders  (a  new  idea  which  completely  changed  the  type  of  cannon),  and,  thirdly, 
the  introduction  of  rapid-fire  cannon. 

In  proposing  in  the  name  of  the  Russian  Government  to  abstain  for  a  certain 
length  of  time  from  putting  into  use  a  new  type  he  had  in  view  inventions  which 
would  involve  as  radical  a  modification  as  one  of  those  just  indicated. 

Mr.  Scheine  states  that  naval  ordnance  may  be  subdivided  into  three 
categories : 

1.  Small  rapid-fire  cannon  of  a  calibre  less  than  120  millimeters,  and  revolv- 
ing cannon. 

2.  The  great  bulk  of  ordnance,  comprising  rapid-fire  cannon  of  a  caliber 
from  12  to  20  cm.,  and  ordinary  big  cannon  up  to  43  cm. 

3.  Cannons  for  embarcations  and  landing. 

From  the  standpoint  of  relieving  budgets,  the  first  group  may  be  left  aside. 

The  third  comes  rather  within  the  domain  of  land  war. 

Taking  only  modern  cannon  into  consideration,  the  second  group  comprises : 

a.    Ordinary  cannon  of  a  caliber  not  exceeding  43  cm. 

h.    Rapid-fire  cannon  from  12  to  20  cm. 

His  proposition  is,  firstly,  to  secure  a  pledge  not  to  go  beyond  the  calibres 
mentioned,  that  is,  beyond  a  maximum  of  43  cm.  for  ordinary  cannon  and  20 
cm.  for  rapid-fire  cannon. 

But  there  is  another  point  which  distinguishes  cannon,  and  that  is  their 
length. 

362 


SECOND  MEETING,  MAY  29,  1899  353 

Moreover,  it  would  be  well  to  assume  obligations  in  regard  to  powders. 

It  will  be  sufficient  to  decide  that  the  initial  velocity  of  projectiles  as  produced 
by  existing  powders  shall  not  be  exceeded,  namely,  700  to  800  meters  per  second. 

It  would  be  well,  moreover,  to  assume  a  pledge  not  to  introduce  any  new 
methods  of  discharging  projectiles  other  than  powder,  and  finally  to  prohibit  the 
use  of  the  force  of  the  recoil  for  reloading  cannon. 

As  to  the  duration  of  the  pledge,  it  might  be  fixed  at  three  or  five  years,  in 
order  to  secure  a  starting  point  which,  as  far  as  possible,  would  not  injure  those 
nations  whose  ordnance  is  more  or  less  in  a  state  of  transformation. 

It  would  be  well  for  each  delegate  to  make  known  the  date  from  which 
his  Government  would  be  willing  to  assume  the  pledge  in  question. 

The  President  thanks  Mr.  Scheine  for  his  interesting  statement.  He  is 
of  opinion  that  as  a  matter  of  fact  it  would  be  possible  to  assume  a  pledge  not  to 
exceed  the  limits  indicated  by  the  Russian  delegate,  without,  however,  forbidding 
one's  self  making  improvements  within  these  bounds. 

Following  remarks  made  by  his  Excellency  Turkhan  Pasha,  Captain  Siegel 
and  Captain  Tadema,  Captain  Scheine  says  that  the  limits  of  the  calibers  might 

be  fixed  at  a  little  higher  figures. 
[63]   Captain  Mahan  observes  that  if  it  is  desired  to  limit  calibers,  armor  plate 
must  also  be  limited. 

The  President  applauds  the  measure  indicated  by  Mr.  Mahan,  which 
would  considerably  relieve  the  budgets. 

Captain  Siegel  remarks  that  not  only  should  account  be  taken  of  the  initial 
velocity,  but  also  of  the  live  force  of  the  projectile,  determined  also  by  the 
weight  of  the  shell. 

Captain  Scheine  answers  that  the  initial  velocity  to  a  certain  extent  deter- 
mines the  weight  of  the  shell,  which  can  not  be  increased  without  the  range 
diminishing. 

Admiral  Pephau  thinks  it  would  be  well  to  adopt  the  principle  of  the  matter 
in  general  terms,  without  entering  into  details. 

He  makes  the  following  proposition: 

The  contracting  nations  undertake,  during  a  period  of   , 

beginning   ,  not  to  subject  the  existing  types  of  cannon  to  a 

radical  transformation  similar  to  that  by  which  the  muzzle  loader  was 
replaced  by  the  breech  loader.  In  no  case  shall  the  calibers  now  in  use 
be  increased. 

The  President  believes  that  the  most  useful  way  of  setting  a  limit  consists 
in  adopting  figures.  He  asks  the  members  to  pass  on  the  proposition  of  Mr. 
Scheine. 

He  would  thank  them  if  they  would  ask  their  Governments  whether  they 
consent  to  pledge  themselves  in  accordance  with  this  proposition. 

Captain  of  Corvette  Count  Soltyk,  according  to  the  instructions  from  his 
Government,  points  out  that  it  will  be  necessary  at  all  events  to  allow  small 
navies  the  possibility  of  improving  their  armaments  until  they  have  reached  the 
level  of  the  great  navies. 

Captain  Sakamoto  is  of  opinion  that  the  limitation  ought  also  to  be  pre- 
scribed as  regards  armor  plate,  and  that  it  would  be  well  to  reach  an  agreement 
right  at  the  start  on  the  fundamental  question  of  seeing  whether  the  pledge  taken 
is  kept. 


364  FIRST  COMMISSION :  SECOND  SUBCOMMISSION 

Mr.  Bille  observes  that  the  thickness  of  an  armor  plate  is  not  the  only  factor 
which  determines  its  resistance.  Could  not  this  question  be  settled  by  finding  a 
fixed  figure  for  the  proportion  between  the  force  of  penetration  of  projectiles 
and  the  force  of  resistance  of  armor  plate? 

It  would  be  necessary  at  all  events  to  take  into  account  also  the  armor 
plates  of  coast  fortifications. 

Captain  Mahan  expresses  doubts  as  to  the  competency  of  the  Commission 
to  deal  with  this  question,  which  does  not  come  within  the  program. 

Although  disposed  to  consult  with  his  Government,  he  does  not  believe  they 
are  inclined  in  the  United  States  to  restrict  inventions,  especially  in  regard  to 
the  improvement  of  armor  plate.  If  it  were  desired  to  reach  a  proper  limit  in 
this  regard,  it  would  be  necessary,  in  his  opinion,  to  assume  a  pledge  not  to 
adopt  any  other  new  manufacturing  process  than  those  now  used. 

It  is  shown  from  an  exchange  of  views  that  the  majority  of  the  members, 
before  passing  on  Mr.  Scheine^s  proposition,  wish  to  have  the  fundamental 
question  laid  down  as  formulated  in  the  proposition  of  Mr.  Pephau. 

Captain  Scheine  agrees  with  the  opinion  of  his  colleagues,  but  he  thinks 
it  would  be  better  to  refer  the  second  paragraph  for  a  subsequent  examination. 

The  President  asks  the  members  to  kindly  ask  instructions  from  their 
Governments  in  regard  to  the  first  paragraph  of  the  proposition  of  Mr.  Pephau. 

The  delegates  declare  their  readiness  to  immediately  address  their  Gov- 
ernments. 

The  President  deems  it  useful  to  specify  the  scope  of  the  proposed  pledge, 
in  this  way  that  it  should  relate  not  only  to  the  cannon  which  a  certain  nation 
has  in  use  at  a  given  moment,  but  also  those  which  have  been  adopted  in  the 
various  countries. 

Within  the  limits  of  the  pledge,  it  would  therefore  be  permissible  for  nations 
which  have  cannon  of  inferior  quality  to  improve  them  until  they  reach  the  level 
of  the  most  advanced  nation. 

Admiral  Fisher  points  out  again  that  the  small  nations,  which  have  to  seek 
their  force  in  the  quality  of  their  equipment,  will  not  easily  be  disposed  to  place 
restrictions  upon  themselves  in  regard  to  new  inventions. 

As  to  wars  against  savage  peoples,  these  restrictions  would  redound  solely 
to  the  detriment  of  the  civilized  nations. 

Finally,  he  calls  attention  to  the  difficulty  of  supervision  (control). 

Captain  Mahan  observes  that  the  propositions  of  Mr.  Pephau  do  not  seem 
acceptable  to  him  without  a  restriction  in  regard  to  armor  plates. 

Captain  Hjulhammar  can  not  consent  to  impending  inventions. 

The  meeting  adjourns. 


[64] 

THIRD  MEETING 

MAY  31,  1899 


Jonkheer  van  Karnebeek  presiding. 

The  minutes  of  the  second  meeting  are  read  and  adopted. 

The  President  states  that  it  is  understood  that  the  votes  cast  by  the  mem- 
bers of  this  subcommission  do  not  positively  pledge  their  respective  Governments. 

He  successively  consults  the  delegates  in  regard  to  the  second  part  of  the 
formula  proposed  by  Admiral  Pephau  :  "  in  no  case  shall  the  calibers  now  in 
use  be  increased." 

Captain  Scheine  is  of  opinion  that  this  question,  which  goes  into  technical 
details,  should  not  be  connected  with  the  first  part  of  the  proposition,  which 
embodies  a  general  principle. 

In  order  to  respond  to  the  observations  made  by  Admirals  Pephau  and 
Mehemed  Pasha,  the  President  defines  the  scope  of  the  question  laid  before 
the  subcommission  by  saying  that  it  relates  to  the  calibers  now  used  by  all 
the  navies  in  general. 

It  appears  from  the  various  opinions  expressed  that  the  delegates  from 
Austria-Hungary,  Sweden  and  Norway,  Japan  (the  latter  under  reservation  as 
regards  the  duration  of  the  pledge),  the  Netherlands,  and  Siam  think  that  their 
Governments  would  have  no  objection  to  assuming  the  pledge  in  question,  pro- 
vided the  limitation  is  adopted  unanimously. 

The  delegate  from  Denmark  has  received  no  instructions  from  his  Govern- 
ment; he  submitted  the  question  to  it  and  it  advised  him  to  side  with  his  afore- 
mentioned colleagues. 

The  delegates  from  the  United  States  and  Italy,  the  latter  under  the  express 
reservation  of  leaving  the  matter  to  its  Government,  deem  the  pledge  inacceptable. 

Admiral  Mehemed  Pasha  is  of  opinion  that  the  two  parts  of  the  proposition 
of  Admiral  Pephau  are  connected  together  and  that  the  opinion  of  the  Gov- 
ernments ought  to  be  asked  on  the  proposition  as  a  whole.  He  therefore  proposes 
to  reserve  the  decision  to  be  made  on  this  question  until  the  next  meeting. 

This  motion  is  carried. 

In  consequence  of  this  resolution  the  Delegates  from  Germany  and  Great 
Britain  do  not  express  their  opinion.  Captain  Siegel  confines  himself  to  point- 
ing out  the  chief  and  very  serious  objection  which  is  raised  both  against  the  first 
part  of  the  proposition  of  Admiral  Pephau  and  against  the  limitation  of  the 
calibers,  which  is  closely  connected  therewith.  This  is  the  necessity  of  limiting 
armor  plates. 

The  President  asks  Mr.  Scheine  whether  he  wishes  to  frame  a  proposition 
relating  to  the  question  of  limiting  the  use  of  new  explosives. 

Captain  Scheine  answers  in  the  negative,  but  his  Government  has  instructed 
him  to  make  a  proposition  concerning  the  prohibition  of  the  putting  into  use  of 

365 


366  FIRST  COMMISSION:  SECOND  SUBCOMMISSION 

any  new  kind  of  explosive,  the  invention  of  which  seems  possible.  It  is  a  question 
of  prohibiting  the  use  of  projectiles  loaded  with  explosives  which  spread  as- 
phyxiating and  deleterious  gases. 

Captain  of  Corvette  Count  Soltyk  and  Admiral  Pephau,  having  observed 
that  in  this  case  the  use  of  all  projectiles  charged  with  explosives  ought  to  be 
forbidden,  since  they  all  contain  more  or  less  injurious  gases,  the  President,  with 
the  consent  of  Mr.  Scheine,  defines  the  proposition  to  the  effect  that  the  prohi- 
bition shall  relate  solely  to  projectiles  whose  purpose  is  to  spread  asphyxiating 
gases  and  not  to  those  whose  explosion  incidentally  produces  these  gases. 

Captain  Mahan  declares  that  he  has  not  made  a  special  study  of  the  question 
of  explosives.  He  explains  that  in  his  opinion  the  use  of  projectiles  of  the  kind 
in  question  can  not  be  considered  as  being  a  means  which  is  prohibited  on  the 
same  ground  as  the  poisoning  of  waters.  Such  projectiles  might  even  be  con- 
sidered as  more  humane  than  those  which  kill  or  cripple  in  a  much  more  cruel 
manner,  by  tearing  the  body  with  pieces  of  metal. 

Supposing  that  projectiles  of  this  kind  should  be  invented,  their  use  may 
produce  decisive  results.  Moreover,  it  would  involve  neither  useless  cruelty 
nor  bad  faith,  as  exists  in  the  case  of  poisoning  waters.  In  his  opinion,  the  use 
of  those  projectiles  ought  therefore  to  be  considered  as  a  lawful  means  of  waging 

war. 
[65]   Mr.  Bille  asks  whether  the  question  is  not  rather  within  the  competency  of 
the  subcommission    which  is  dealing  with  the  Brussels  Declaration  of  1874. 

Mr.  Rolin  says  that  that  subcommission,  of  which  he  is  reporter,  will  not 
pass  on  the  question  until  it  learns  of  the  result  of  the  deliberations  of  the  present 
subcommission. 

Captain  Scheine  states  in  support  of  his  proposition  that  as  it  is  the  task 
of  the  Conference  to  limit  the  means  of  destruction,  it  is  logical  to  prohibit  new 
means,  especially  when,  like  the  one  in  question,  they  are  barbarous  in  character 
and  are,  in  his  opinion,  equivalent  to  the  poisoning  of  a  river. 

The  President  observes  that  the  latter  action  is  treacherous  in  character,  but 
that  asphyxiating  projectiles  no  more  have  this  character  than  ordinary  ones. 

Mr.  Bille  sides  with  Mr.  Scheine.  He  thinks  that  unless  there  is  some  ab- 
solute reason  for  authorizing  the  use  of  these  projectiles,  it  is  within  the  mission 
of  the  Conference  to  prohibit  their  use.  If  directed  against  a  besieged  city,  they 
would  perhaps  hit  more  harmless  inhabitants  than  the  ordinary  projectiles. 

The  President  asks  whether,  in  the  opinion  of  the  delegates,  the  Govern- 
ments could  consent  to  prohibiting  the  use  of  projectiles  charged  with  explosives 
and  the  express  purpose  of  which  is  to  spread  asphyxiating  gases. 

The  following  persons  answered  "  yea "  on  the  supposition  that  there  be 
unanimity  on  the  question :  the  delegate  from  France,  the  delegate  from  Austria- 
Hungary,  who  is  of  opinion  that  death  by  asphyxiation  is  more  cruel  than  death 
by  bullets;  the  delegates  from  Sweden  and  Norway,  Japan,  the  Netherlands, 
Denmark,  Turkey,  Italy,  and  Germany. 

The  Delegate  from  the  United  States  answers  "  nay,"  giving  the  following 
explanation,  which  he  asks  to  have  entered  in  the  minutes: 

1.  The  objection  that  a  warlike  device  is  barbarous  has  always  been  made 
against  new  weapons,  which  have  nevertheless  eventually  been  adopted. 

In  the  middle  ages  firearms  were  accused  of  being  cruel ;  later  on  an  attack 
was  made  against  shells,  and  still  more  recently  (the  author  remembers  this 
very  well)  against  torpedoes. 


THIRD  MEETING,  MAY  31,  1899  357 

It  does  not  seem  demonstrated  to  him  that  projectiles  filled  with  asphyxiat- 
ing gases  are  inhuman  and  uselessly  cruel  devices,  and  that  they  would  not 
produce  a  decisive  result. 

2.  He  is  the  representative  of  a  nation  which  is  actuated  by  a  keen  desire 
to  render  war  more  humane,  but  which  may  be  called  upon  to  make  war,  and 
it  is  therefore  necessary  not  to  deprive  one's  self,  by  means  of  hastily  adopted 
resolutions  of  means  which  might  later  on  be  usefully  employed. 

The  Delegate  from  Siam  has  received  general  instructions  to  approve  as  far 
as  possible  any  humanitarian  measure,  but  he  wonders  whether  the  projectiles 
in  question  ought  not  rather  to  be  considered  as  more  humane  instruments  of 
war  than  others;  consequently,  he  reserves  his  vote  until  he  has  referred  the 
matter  to  his  Government. 

The  Delegate  from  Great  Britain  is  of  opinion  that  it  is  unlikely  that  an 
invention  of  the  kind  will  be  made,  but  that  at  all  events  no  doubts  should  exist 
on  the  point  that  the  prohibition  is  to  relate  solely  to  projectiles  whose  express 
purpose  is  to  spread  asphyxiating  gases.  Along  this  line  of  ideas  Sir  John 
Fisher  sides  in  favor  of  prohibition. 

The  question  is  now  taken  up  whether  the  Governments  could  agree  to 
prohibit  diving  or  submarine  torpedoes. 

The  President  asks  the  members  of  the  subcommission  to  express  their 
opinion  on  this  subject.  In  his  opinion,  it  is  sufficient  for  one  nation  to  adopt 
these  terrible  devices  of  war  in  order  that  all  the  others  be  free  to  make  use 
thereof. 

Captain  Siegel  believes  that  if  all  the  other  Governments  agreed  not  to 
adopt  vessels  of  this  kind,  Germany  would  join  in  in  this  understanding. 

The  Delegate  from  the  United  States  wishes  to  preserve  full  liberty  for 
his  Government  to  use  submarine  torpedo  boats  or  not  and  to  await  the  decision 
of  the  other  Governments  on  this  subject;  he  reserves  his  opinion. 

The  Delegate  from  Austria- Hungary  declares  that,  for  the  time  being,  his 
country  does  not  possess  any  submarine  or  diving  torpedo  boats,  for  these  devices 
have  not  yet  acquired  the  necessary  perfection  in  order  that  they  may  be  used 
practically;  it  is  necessary  therefore  at  present  for  Austria  to  confine  itself  to 
attentively  follow  the  progress  of  this  new  invention,  which,  in  the  personal 
opinion  of  Count  Soltyk,  may  be  used  for  the  defense  of  ports  and  roadsteads 
and  render  very  important  services. 

The  Delegate  from  Denmark  asks  to  refer  the  matter  to  his  Government, 
which,  in  his  opinion,  will  agree  to  a  prohibition  if  the  nations  unanimously 

adopt  it. 
[66]  The  Delegate   from   France  thinks  that  the  submarine  torpedo  has  an 
eminently  defensive  purpose,  and  that  the  right  to  use  it  should  therefore 
not  be  taken  from  a  country. 

The  Delegate  from  England  thinks  that  his  country  would  consent  to  the 
prohibition  in  question  if  all  the  Great  Powers  were  agreed  on  this  point.  It 
would  concern  itself  little  as  to  what  decision  the  smaller  countries  reached. 

The  Delegates  from  Italy  and  Japan  express  a  similar  opinion  to  that  of 
Mr.  Siegel. 

The  Delegate  from  the  Netherlands  thinks  that  the  submarine  torpedo  is 
the  weapon  of  the  weak,  and  he  does  not  think  its  use  can  be  prohibited. 

The  Delegate  from  Russia,  under  reservation  with  respect  to  unanimity 
expresses  himself  in  favor  of  prohibition. 


368  FIRST  COMMISSION:  SECOND  SUBCOMMISSION 

The  Delegate  from  Siam  desires,  in  this  as  in  the  preceding  case,  to  refer 
the  matter  to  his  Government,  inasmuch  as  on  the  one  hand  he  has  received 
general  instructions  to  agree,  as  far  as  possible,  to  any  humanitarian  measure,  and 
as  on  the  other  hand  he  thinks,  like  Mr.  Tadema,  that  the  necessities  of  defense 
of  the  small  nations  must  be  taken  into  serious  consideration. 

The  Delegate  from  Sweden  and  Norway  thinks  that  the  United  Kingdoms 
could  not,  for  the  reason  expressed  by  the  delegate  from  the  Netherlands,  agree 
to  prohibition. 

The  Delegate  from  Turkey  wishes  to  reserve  to  the  defensive  side  the 
right  to  use  submarine  torpedoes. 

The  question  of  war  vessels  ivith  rams  is  now  taken  up. 

Admiral  Sir  John  Fisher  expresses,  in  regard  to  the  prohibition  to  construct 
vessels  of  this  kind,  an  opinion  similar  to  that  which  he  gave  regarding  submarine 
torpedoes. 

Admiral  Pephau  endorses  the  opinion  of  Sir  John  Fisher.  ' 

After  an  exchange  of  views,  the  President  states  that  it  is  understood : 

1.  That  the  prohibition  shall  not  extend  to  existing  vessels,  nor  to  those 
whose  plans  of  construction  are  already  under  way. 

2.  That  by  vessel  with  a  ram  should  not  be  meant  a  war  vessel  which, 
though  not  provided  with  a  ram,  is  reenf  orced  at  the  stem  so  as  to  be  able  to  give 
and  stand  a  shock. 

Captain  Mahan  says  that,  being  thus  defined  and  provided  there  be 
unanimity,   the  prohibition  appears   acceptable. 

Captain  Siegel  remarks  that  several  navies  have  worked  out  a  certain  pro- 
gram for  new  constructions.  Certain  vessels  provided  for  in  these  programs  are 
already  finished,  others  are  under  construction,  while  the  rest,  although  the 
plans  thereof  are  absolutely  determined  upon,  have  not  yet  been  begun.  It  is 
impossible  to  change  the  plans,  for  the  program  calls  for  the  same  tactical  and 
nautical  qualities  for  all  the  vessels  and  these  qualities  would  be  changed  if  the 
form  of  the  front  part  were  not  preserved. 

Captain  Sakamoto  would  also  like  to  exclude  from  the  prohibition  the  vessels 
already  planned  for  in  accordance  with  a  determined  organization. 

The  President  says  that  the  humanitarian  purpose  pursued  by  the  Confer- 
ence is  too  lofty  to  necessitate  the  taking  into  account  of  the  plans  drawn  up  by 
engineers;  at  all  events  the  latter  would  have  but  to  do  their  work  over  again. 

However,  he  deems  it  necessary  to  admit  all  vessels  with  a  ram  in  regard  to 
which  any  steps  had  been  taken  toward  their  execution  without  their  being  under 
construction,  for  instance,  those  which  have  been  ordered  of  the  builders. 

Captain  Scheine  has  not  been  instructed  to  frame  any  fixed  proposition 
regarding  the  question  put  to  a  vote. 

In  placing  this  question  on  the  program,  his  Government  rather  entertained 
a  desire  to  ascertain  the  opinions  of  the  various  Governments. 

He  wishes  to  ask  for  precise  instructions. 

Captain  of  Corvette  Count  Soltyk  is  authorized  to  declare  that  the  superior 
command  of  the  Austro-Hungarian  navy  can  in  no  wise  commit  itself  in  regard 
to  this  question. 

Captain  Sakamoto  agrees  with  the  opinion  that  in  case  of  unanimity  the 
prohibition  appears  acceptable,  with  reservation  made  in  regard  to  the  date  of 
beginning  of  the  pledge. 

Admiral  Pephau  likewise  holds  the  opinion  expressed  by  the  majority  of 


THIRD  MEETING,  MAY  31,  1899  369 

his  colleagues,  with  the  restriction  that  the  prohibition  shall  not  take  effect  until 
after  a  subsequent  date,  up  to  which  the  Governments  must  be  allowed  the 
necessary  time  to  determine  the  constructions  already  projected. 

Captain  Hjulhammar  observes  that  by  abolishing  the  ram  and  not  the  tor- 
pedo little  will  have  been  done  for  the  cause  of  humanity. 
[67]  Moreover,  the  ram  is  useful  against  transports  in  case  of  landing,  a  matter 
which  is  important  to  nations  having  an  extensive  coastline. 

He  is  personally  opposed  to  the  idea  of  prohibition,  but  will  ask  the  opinion, 
of  his  Government. 

The  President  says  that  as  the  order  of  the  day  of  the  subcommission  is  ex- 
hausted, the  next  meeting  might  be  deferred,  in  accordance  with  the  decision; 
reached,  to  the  following  Monday. 

He  asks  whether  any  one  has  any  more  propositions  to  make. 

Captain  Scheine  proposes,  subject  to  subsequent  change  of  wording,  that 
the  contracting  Powers  recognize  in  neutral  Powers  the  privilege  of  sending  their 
agents  to  the  theatre  of  maritime  war,  with  the  authorization  and  under  the  super- 
vision of  the  competent  military  authorities  of  the  belligerent  Powers. 

Several  members  observe  that  this  question  is  not  within  the  competence 
of  the  Commission,  or  even  of  the  Conference. 

It  is  for  the  respective  Governments  to  decide  in  each  particular  case  what 
they  can  grant  to  neutral  Governments  in  regard  to  this  question. 

There  does  not  seem  to  be  an  urgent  need  to  regulate  this  matter. 

Captain  Scheine  says  that  the  case  recently  presented  itself  and  that  an 
exchange  of  views  on  this  matter  would  be  exceedingly  useful. 

The  subcommission,  without  going  any  further  into  the  discussion,  post- 
pones a  continuance  thereof  to  next  Monday. 


FOURTH  MEETING 

JUNE  5,  1899 


Jonkheer  van  Karnebeek  presiding. 

The  minutes  of  the  third  meeting  are  read  and  adopted. 

In  the  first  place  the  question  of  vessels  with  a  ram  is  reverted  to. 

Mr.  Bille  says  that  his  Government  has  just  informed  him  that  it  can  not 
adopt  a  prohibition  against  a  vessel  with  a  ram. 

The  definition  of  a  ram,  as  accepted  at  the  last  meeting,  namely,  that  by  a 
vessel  with  a  ram  is  not  to  be  meant  a  vessel  with  reenforced  stem,  removes  all 
excuse  for  this  prohibition. 

The  ram  can  not,  in  the  opinion  of  his  Government,  be  considered  as  a 
weapon,  but  as  an  integral  part  of  the  hull. 

He  deems  that  it  constitutes  a  useful  means  of  defense,  which  affords  small 
craft  a  single  chance  to  overcome  large  ships. 

Captain  Scheine  says  that,  as  there  is  no  unanimity  among  the  members,  the 
delegate  from  Sweden  and  Norway  having  at  the  previous  meeting  also  opposed 
the  prohibition  of  the  ram,  he  will  not  insist  on  this  proposition. 

The  President  observes  that  as  the  mission  of  this  assembly  is  merely  to 
exchange  its  views  on  the  subject,  the  question  of  the  maintenance  or  abolition 
of  the  ram  can  not  be  settled  here,  but  the  opinions  reproduced  in  the  minutes 
have  been  acquired  as  a  result  of  the  deliberations  and  will  have  their  value  to 
the  Governments  which  will  have  to  pass  on  the  question  later  on. 

The  question  of  the  ram,  terminated  as  far  as  the  subcommission  is  concerned, 
therefore,  remains  on  the  order  of  the  day  for  the  full  session  of  the  Commission, 
and  the  reporter  will  kindly  insert  in  his  report  the  different  opinions  which  have 
been  expressed. 

The  President  proposes  afterwards  to  take  up  the  first  part  of  the  proposi- 
tion of  Admiral  Pephau,  thus  worded :  "  The  contracting  nations  undertake, 

for  a  period  of from ,  not  to  have  the  existing  types  of  cannon 

undergo  any  radical  transformation  similar  to  that  of  the  muzzle-loading  cannon 
being  replaced  by  the  breech-loading,"  and  he  invites  the  delegates  who  have 
received  instructions  on  this  subject  from  their  Governments  to  kindly  express 
their  opinions. 

The  Delegate  from  Germany  remarks  that  he  can  not  accept  this  proposition 
owing  to  its  vague  form.     He  explains  his  vote  as  follows: 

The  amendment  offers  the  great  advantage  that  it  might  be  adopted  without 
binding  one's  self. 

It  is  very  ably  conceived  and  its  terms  enable  anything  to  be  inserted  in  it 
that  is  desired. 
[68]   But  this  advantage  is  at  the  same  time  a  weakness  and  a  ground  to  be 
invoked  against  its  adoption. 

370 


FOURTH  MEETING,  JUNE  5,  1899  371 

If  such  a  form  of  wording  were  accepted,  no  one  would  be  satisfied,  neither 
military  men  nor  the  public,  which  would  at  once  understand  that  this  means  was 
chosen  only  in  order  to  get  out  of  a  difficulty. 

If  we  consent  to  adopt  a  formula  of  the  kind  in  question,  we  shall  become 
responsible  for  the  sense.  The  text  thereof  is  too  vague  and  uncertain  to  permit 
of  a  certain  interpretation. 

The  Delegate  from  the  United  States  declares  on  behalf  of  his  Government 
that  he  can  not  agree  to  the  proposition. 

The  Delegate  from  Austria-Hungary  makes  the  following  declaration : 

The  Austro-Hungarian  navy  department,  considering  that,  even  though  our 
firearms  can,  without  doubt,  compete  with  those  of  like  class  of  other  countries, 
my  Government  is  not  in  a  position  to  give  up  the  improvement  of  its  firearms  even 
for  a  certain  length  of  time  to  be  determined  later  on. 

It  looks  at  the  question  of  new  explosives  and  powders  for  cannon  and  guns 
from  the  same  standpoint. 

The  Delegate  from  Denmark  declares  that  he  is  authorized  to  accept  the 
proposition. 

The  Delegate  from  Spain  says  he  can  not  accept  it. 

The  Delegate  from  Great  Britain  likewise  declares  that  the  proposition  is 
not  acceptable  by  reason  of  the  great  difficulties  which  would  stand  in  the  way 
of  putting  it  into  practice. 

The  Delegate  from  Italy  declares  that  he  can  not  accept  the  proposition. 

The  Delegate  from  Japan  believes  that  the  proposition  might  be  accepted  by 
his  Government,  provided  the  length  of  the  pledge  were  not  too  long  and  there 
were  unanimity. 

The  Delegate  from  the  Netherlands  declares  that  though  he  deems  the 
proposition  very  vague,  he  believes  that  his  Government  can  accept  it. 

The  Delegate  from  Portugal  is  of  opinion  that  the  proposition  is  very  vague 
and  can  not  be  accepted. 

The  Delegate  from  Roumania  believes  that  the  Roumanian  Government 
would  willingly  endorse  the  first  part  of  the  proposition  of  Admiral  Pephau 
relative  to  the  radical  transformations  of  existing  types  of  cannon  for  naval 
artillery,  provided  the  duration  of  the  pledge  were  fixed,  this  proposition  having 
been  indorsed  by  Mr.  Scheine. 

The  Delegate  from  Siam  accepts. 

The  Delegate  from  Sweden  and  Norway  abstains  from  expressing  an 
opinion. 

The  Delegate  from  Turkey  makes  the  following  declaration : 

The  Imperial  Ottoman  Government  procures  abroad  the  necessary  armaments 
for  its  ships. 

If  therefore  other  Powers  accept  the  proposition  of  Admiral  Pephau,  said 
Government,  as  soon  as  it  has  attained  the  same  degree  of  perfection  as  the  other 
Governments,  will  naturally  take  care  not  to  exceed  this  degree  as  long  as  the 
other  Powers  do  not  change  their  armaments. 

The  President  asks  the  subcommission  to  kindly  express  itself  on  the  second 
part  of  the  proposition  in  regard  to  the  caliber  of  cannon. 

Captain  Scheine  asks  authority  to  present  another  and  more  precise  propo- 
sition. 

He  proposes  that  the  Governments  undertake : 


372  FIRST  COMMISSION :  SECOND  SUBCOMMISSION 

1.  Not  to  exceed  a  caliber  of  17  inches,  or  431.7  mm.  for  any  kind  of  cannon. 

2.  That  the  length  of  cannon  be  fixed  at  a  maximum  of  45  calibers. 

3.  That  the  initial  velocity  does  not  exceed  3000  feet,  or  914  meters. 

4.  For  armor  plates  the  maximum  thickness  will  be  14  inches,  or  355  mm., 
and  of  the  same  quality  as  that  manufactured  according  to  the  latest  Krupp 
patent. 

The  President  observes  that  this  new  proposition,  by  introducing  new  figures, 
acquires  a  much  more  precise  character ;  at  a  previous  meeting  the  general  opinion 
was  not  in  favor  of  too  determinate  limits ;  personally  he  prefers  them,  for  the 

pledge  to  be  given  would  gain  thereby  in  value  and  significance. 
[69]   He  thinks  he  must  consult  again  the  delegates  in  regard  to  the  figures  pro- 
posed by  the  delegate  from  Russia. 

Admiral  Pephau  thinks  that  the  amendment  of  Mr.  Scheine  is  very  extensive 
and  complex.  In  it  are  mentioned  four  different  factors :  caliber,  length,  initial 
velocity,  and  thickness  of  armor  plate.  According  to  him,  each  of  these  factors 
should  be  voted  on  separately. 

Colonel  Coanda  objects  to  the  proposition  of  placing  limits  only  on  the  initial 
velocity,  as  this  appears  insufficient  to  him ;  in  limiting  the  velocity,  the  weight  of 
the  projectile  ought  also  to  be  fixed,  in  order  that  the  initial  force  may  be 
calculated. 

The  limit  imposed  by  fixing  the  length  of  the  cannon  depends  on  the  powder 
used.  If  therefore  only  the  initial  velocity  is  limited,  and  on  the  other  hand  the 
maximum  resistance  for  the  armor  plate  is  fixed,  this  would  be  dooming  the  armor 
plate  in  advance  to  be  overcome. 

Captain  Scheine  says  that  the  weight  of  the  projectiles  is  to  a  certain  extent 
limited  by  the  initial  velocity.  If  it  is  desired  to  increase  the  weight  of  the 
projectiles  without  diminishing  the  range,  it  will  be  necessary  also  to  increase  the 
initial  velocity. 

Colonel  Coanda  remarks  that  then  we  shall  fire  a  shorter  distance  or  with 
somewhat  less  precision  and  that  nevertheless  we  shall  then  succeeed  in  perforat- 
ing the  armor  plates. 

The  President  thinks  the  proposition  should  be  voted  on  as  a  whole,  because 
there  is  a  necessary  correlation  between  the  different  calibers.  He  successively 
consults  the  delegates. 

Captain  Siegel  declares  that  it  is  impossible  for  him  to  indorse  the  proposition 
of  Mr.  Scheine. 

The  question,  being  too  complex,  requires  a  thorough  study,  especially  in 
order  to  appreciate  the  correlation  between  the  various  figures  and  in  order  to 
fix  the  relations  between  the  resistance  of  the  armor  plate  and  the  power  of  the 
cannon. 

Captain  Mahan  is  of  the  same  opinion. 

Count  Soltyk  says  he  can  not  accept  the  responsibility  of  expressing  an 
opinion  without  obtaining  the  view  of  his  Government. 

Moreover,  he  agrees  with  Admiral  Pephau  that  the  study  of  such  a  problem 
ought  to  be  referred  to  a  technical  committee  and  that  a  solution  will  not  be 
obtained  in  a  short  time. 

Mr.  Bille  thinks  the  question  is  of  too  technical  a  nature  for  him  to  be  able 
to  pass  an  opinion  on  it.  Nevertheless,  his  Government  would  endorse  whatever 
decision  secured  unanimity  of  votes. 


FOURTH  MEETING,  JUNE  5,  1899  373 

Admiral  Pephau  and  Count  de  Serrallo  declare  also  that  they  can  not  pledge 
themselves  right  now  as  to  Air.  Scheine's  proposition,  the  question  being  too 
complex. 

Admiral  Pephau  remarks  moreover  that  the  question  of  the  armor  plates  is 
not  sufficient  since  new  processes  might  be  invented  which,  with  less  thickness, 
would  lend  greater  resistance  to  armor  plates. 

The  President  thinks  that,  without  claiming  positively  that  it  is  impossible 
to  arrive  at  an  understanding  regarding  the  formulas  presented  by  Mr.  Scheine, 
the  delegates  deem  it  absolutely  necessary  to  submit  the  question  to  a  technical 
examination  in  each  country.  He  therefore  proposes  that  the  discussion  be 
deferred  until  a  subsequent  meeting. 

Captain  Sakamoto  expresses  a  fear  that,  in  view  of  the  remoteness  of  his 
country,  it  might  be  that  the  results  of  a  technical  investigation  begun  in 
Japan  on  this  complex  question  would  not  reach  him  until  after  the  Confer- 
ence. 

The  President  makes  an  appeal  to  the  delegates  in  order  to  attain  a  result 
before  the  end  of  the  Conference,  that  is,  within  a  few  weeks,  even  if  it  is 
necessary  to  wait  until  the  last  plenary  sessions  in  order  to  receive  the  opinions 
of  the  various  Governments  or  at  least  a  majority  of  them ;  it  would  be  regrettable 
to  allow  this  opportunity  to  pass  of  approaching  the  principal  purpose  which  it 
was  desired  to  attain,  namely,  a  relief  of  the  budgets. 

He  asks  whether  the  delegates  think  they  can  still  receive  in  time  the  answers 
of  their  Governments. 

Captain  Scheine  asks  that  the  delegates  kindly  transmit  his  proposition  to 
their  Governments,  and  ask  information  at  the  same  time  as  to  the  figures  which 
these  Governments  would  be  willing  to  adopt  in  case  the  afore-mentioned  figures 
should  not  suit  them. 

The  President  deems  that  it  would  be  useful  to  proceed  thus ;  and  he  requests 
the  delegates  to  ask  their  Governments  whether  they  would  be  willing  to  assume 
a  pledge  limited  by  figures  in  case  the  figures  proposed  by  Russia  should  appear 
acceptable  to  them,  and  to  ask  them  to  let  them  know  what  figures  they  would  like 
to  substitute  in  their  stead. 

In  connection  with  a  remark  by  Admiral  Sir  John  Fisher,  the  President 
[70]  says  that,  according  to  him,  it  is  evident  that  a  limitation  of  the  power  of 
cannon  and  armor  plates  of  war-ships  should  also  be  applicable  to  land 
batteries  for  the  defense  of  roadsteads  and  ports. 

The  President  reverts  to  No.  3  of  the  circular  of  Count  Mouravieff.  He 
calls  attention  to  the  fact  that  when  it  is  a  question  of  already  existing  explosives 
of  a  formidable  power,  the  subcommission  was  of  opinion  that  the  expression  "  to 
limit  the  use  "  contemplates  a  limitation  of  the  cases  in  which  it  will  be  possible 
to  use  these  explosives. 

The  President  asks  Mr.  Scheine  whether  he  has  any  proposition  to  make 
in  this  regard. 

Captain  Scheine  thinks  that  No.  3  of  the  circular  relates  rather  to  land  war- 
fare.    The  subcommission  partakes  of  this  view. 

The  President,  after  asking  the  reporter  to  kindly  take  note  in  his  report  of 
these  different  conclusions,  again  invites  Mr.  Scheine  to  accurately  define  the 
proposition  which  he  made  at  the  previous  meeting  concerning  the  admission  of 
the  agents  of  neutral  countries  on  the  scene  of  the  naval  war. 


374  FIRST  COMMISSION:  SECOND  SUBCOMMISSION 

Captain  Scheine  says  that  he  maintains  his  proposition  save  a  modification 
of  the  word  "  right  "  into  "  privilege." 

The  President  asks  Mr.  Scheine  whether  he  desires  to  assimilate  the  position 
of  the  afore-mentioned  agents  to  that  of  military  attaches  in  land  wars. 

After  an  exchange  of  views  in  this  regard,  which  was  participated  in  by  Count 
Soltyk,  Admiral  Pephau,  Mr.  Bille,  and  Admiral  Sir  John  Fisher,  the  President 
states  that  it  is  shown  from  the  opinions  expressed  that  it  is  a  question  here  of  the 
admission  of  agents  who  are  situated  on  the  vessels  of  one  of  the  belligerents,  but 
that  usages  and  practices  vary  in  the  different  countries  in  regard  to  this  subject, 
and  that  it  is  desired  to  remain  free  to  reach  a  determination  in  each  case,  accord- 
ing to  circumstances. 

The  subcommission  does  not  believe  that  this  matter  is  within  its  competency 
and  does  not  wish  to  take  it  under  further  consideration. 

The  President  remarks  that  the  program  of  this  subcommission  is  exhausted 
and  he  requests  the  reporter  to  kindly  prepare  his  report. 

Count  Soltyk  asks  that  his  report  be  read  at  a  coming  meeting  of  the  sub- 
commission  before  being  read  at  a  plenary  meeting  of  the  commission. 

The  President  joins  in  this  request  and  proposes  that  the  reading  of  the 
minutes  of  to-day's  meeting  be  postponed  until  the  same  meeting. 

Captain  Scheine  proposes  again  to  the  subcommission  to  examine  whether 
it  would  not  be  possible  in  time  of  peace  to  cover  over  the  rams  of  war  vessels 
in  order  to  lessen  the  danger  presented  by  vessels  with  rams  to  other  vessels  in 
case  of  collision. 

After  an  exchange  of  views  between  Sir  John  Fisher  and  Messrs.  Siegel, 
Mahan,  Sakamoto,  and  Scheine,  it  is  ascertained  that  the  means  which  might  be 
used  for  this  purpose  are  still  too  vaguely  known  to  be  discussed,  and  the  Presi- 
dent states  that  mention  will  be  made  in  the  minutes  of  the  desire  expressed  by 
the  subcommission  to  see  the  purpose  suggested  by  Mr.  Scheine  accomplished. 
As  to  the  question  proposed  by  Mr.  Siegel  as  to  whether  it  is  still  necessary  to 
make  inquiries  of  the  Governments  in  regard  to  the  prohibition  of  projectiles  con- 
taining asphyxiating  gases  and  regarding  submarine  torpedoes,  the  Prbsident 
declares  that  in  his  opinion  there  is  no  need  of  reverting  to  these  questions. 

The  President  will  convoke  the  members  for  the  next  meeting. 

The  meeting  adjourns. 


FIFTH  MEETING 

JUNE  16,  1899 


Jonkheer  van  Keirnebeek  presiding. 

The  minutes  of  the  last  meeting  of  June  5  are  read  and  approved. 

At  the  request  of  the  President,  Captain  of  Corvette  Count  Soltyk  reads 
his  report. 

In  terminating,  he  invites  those  of  his  colleagues  who  might  wish  to  have 
[71]   a  modification  made  in  the  terms  in  which  he  has  related  their  opinions  to 
kindly  communicate  their  desires. 

The  President,  in  the  name  of  himself  and  his  secretaries,  thanks  the  reporter 
for  the  sentiments  which  he  was  pleased  to  express  and  which  the  subcommission 
endorsed. 

Acting  as  spokesman  for  the  subcommission,  and  in  his  own  name,  he  wishes 
to  warmly  thank  Count  Soltyk  for  the  eminent  manner  in  which  he  has  dis- 
charged his  very  difficult  task. 

He  asks  whether  the  delegates  desire  to  see  any  changes  introduced  in  the 
report. 

Captain  Sakamoto  asks  that,  on  page  2,  paragraph  4,  where  mention  is  made 
of  his  question  regarding  the  meaning  of  the  definition  of  the  term  "  new  type," 
the  words  "  now  already  invented  but  not  yet  adopted  "  be  changed  to  "  not  yet 
invented  at  the  present  time." 

The  President  states  that  the  terms  of  the  report  correspond  to  those  of  the 
minutes  of  the  first  meeting,  approved  with  the  consent  of  Mr.  Sakamoto. 

Mr.  RafTalovich  insists  that  a  special  mention  be  made  in  the  present  minutes 
of  the  request  of  Mr.  Sakamoto,  which  tends  to  modify  an  opinion  expressed  by 
him  and  embodied  in  the  minutes. 

Captain  Mahan,  after  declaring  that  the  modification  desired  by  Mr.  Saka- 
moto is  in  accord  with  the  opinion  that  he  had  wished  to  express  himself  on  the 
same  question,  Count  Soltyk  and  the  subcommission  adopt  the  proposed  modi- 
fication. 

Mr.  Mahan  asks  permission  to  change,  both  in  the  minutes  approved  May  31 
and  in  the  report  of  Count  Soltyk,  the  expression  "  or  uselessly  cruel  "  into 
"cruel  without  being  decisive."  (See  his  opinion  as  to  projectiles  charged  with 
asphyxiating  gases.) 

The  change  is  adopted. 

In  concert  with  the  reporter,  some  slight  modifications  are  furthermore  made 
in  the  report,  which  will  be  reprinted,  taking  into  account  the  observations  which 
have  been  made. 

Baron  Bildt  asks  whether  the  subcommission  does  not  intend  to  pass  to-day 
on  the  last  propositions  of  Mr.  Scheine,  relating  to  cannon,  powders,  and  armor 

2:7s 


376  FIRST  COMMISSION :  SECOND  SUBCOMMISSION 

plates,  in  regard  to  which  it  had  been  decided  to  ask  instructions  from  the 
Governments. 

The  President  remarks  that  it  had  been  understood  that  this  question  should 
be  left  open  until  the  end  of  the  Conference ;  in  the  general  opinion  of  the  delegates 
it  requires  a  special  study  by  the  technical  experts  of  the  various  Governments. 

It  would  be  a  very  happy  result  with  a  view  to  relieving  budgets  if,  at  the  final 
meeting,  it  were  possible  to  come  to  an  agreement  on  a  positive  proposition  in 
regard  to  naval  armaments. 

Baron  Bildt  thinks  that  it  ought  to  be  stated  in  the  minutes  and  in  the  report 
to  what  conclusion  the  subcommission  has  come  on  this  question. 

The  President  remarks  that  the  minutes  and  the  summary  report  appear  to 
him  clear  and  explicit  in  this  regard. 

Consequently  it  is  decided  that  paragraph  6,  page  4,  of  the  report  shall  be 
drawn  up  as  follows : 

Being  therefore  unable  to  secure  a  solution  until  a  technical  examination 
has  been  made  in  each  country,  the  subcommission  decides  to  postpone  the 
discussion  to  a  subsequent  period  in  order  to  await  the  decision  of  the 
respective  Governments,  which  the  delegates  have  promised  to  ask  for. 

The  President  says  it  is  well  understood  that  the  question  may  be  discussed 
anew  at  a  meeting  either  of  the  First  Commission  in  session  or  at  a  meeting  of 
the  plenary  Conference,  or  even  at  a  subsequent  meeting  of  the  subcommission, 
which  might  be  called  for  this  purpose. 

Upon  the  proposition  of  Mr.  Scheine,  the  delegates  will  make  known  to  the 
president  or  to  the  bureau  the  answers  of  their  Governments  as  fast  as  they  are 
received. 

Admiral  Fisher  congratulates  the  president  for  the  competency  he  has 
shown,  in  the  difficult  deliberations  of  this  subcommission,  which  often  had  to 
render  impossibilities  possible,  as  well  as  for  the  perseverance  with  which  he  has 
endeavored  to  attain  positive  results. 

Captain  Siegel  endorses  the  words  spoken  by  Sir  John  Fisher.  {Unani- 
mous applause.^ 

Mr.  van  Karnebeek  thanks  Admiral  Fisher  for  his  kind  words  and  all  the 
members  for  their  benevolent  and  useful  cooperation. 

The  meeting  adjourns. 


172] 

SIXTH  MEETING 

JUNE  26,  1899 


Jonkheer  van  Karnebeek  presiding. 

The  President  remarks  that  a  new  task  has  been  entrusted  to  the  subcom- 
mission  by  the  plenary  Commission,  namely,  the  examination  of  the  propositions 
made  by  the  Russian  Government  in  regard  to  the  limitation  of  the  naval  budgets. 
He  states  that  a  certain  freedom  of  action  is  left  to  the  subcommission  as  to  its 
mode  of  proceeding. 

On  the  proposition  of  Admiral  Pephau,  backed  by  several  other  delegates, 
it  is  decided  not  to  appoint  a  special  committee  but  to  take  up  the  discussion  of 
the  Russian  propositions  at  once.  Following  the  deliberations  it  will  perhaps  be 
necessary  to  appoint  a  drafting  committee. 

Captain  Scheine  gives  some  explanations  on  these  propositions  and  specifies 
the  pledge  to  be  taken  in  this  respect.  Each  Government  is  to  have  a  right  to 
fix  its  budget  at  such  figure  as  may  seem  desirable  to  it,  but  once  this  budget 
is  fixed  and  communicated,  its  total  shall  not  be  increased  for  a  period  of  three 
years  from  the  time  the  pledge  goes  into  force. 

The  Governments  will  therefore  not  be  obliged  to  take  the  budgets  now 
existing  as  a  basis  for  the  pledge,  but  may  choose  as  such  a  budget  which  is 
higher  than  that  in  force  at  the  present  time. 

In  order  to  prevent  misunderstandings,  Mr.  Scheine  remarks  that  by 
"  amount  of  the  budgets "  he  means  both  extraordinary  and  ordinary 
expenditures. 

The  President  observes  that  it  had  been  his  intention  to  make  a  similar 
suggestion,  namely,  that  the  Governments  should  inform  one  another  of  what 
expansion  they  wished  to  give  to  their  navies  and  that  these  figures,  once  com- 
municated, should  not  be  changed  during  a  certain  period. 

Captain  Siegel  desires  to  show  the  situation  of  the  German  navy  in  a  few 
words.  It  is  precisely  and  very  clearly  defined  by  the  law  regarding  the  fleet. 
The  propositions  of  Captain  Scheine  aim  at  having  the  expenditures  fixed  in 
advance  for  a  period  of  three  years;  but  they  do  not  imply  the  condition  that 
the  budget  shall  remain  the  same  for  each  year;  on  the  contrary,  it  may  be 
changed  provided  the  increase  is  foreseen  in  advance.  These  propositions  are 
already  fulfilled  and  even  surpassed  by  the  "  law  regarding  the  fleet,"  in  which 
provision  is  made  simultaneously,  for  the  following  years,  for  the  number  of 
officers  and  crews  and  for  the  harbor  works  to  be  executed.  As  to  the  first 
paragraph  of  the  Russian  proposition,  the  law  goes  further  and  even  defines  the 
types  of  vessels  to  be  constructed. 

377 


378  FIRST  COMMISSION:  SECOND  SUBCOMMlSSION 

It  follows  that  the  German  navy  is  out  of  the  controversy  as  regards  these 
propositions,  it  not  being  interested  in  the  matter  for  the  reason  that  what  is 
demanded  already  exists. 

Admirals  Fisher  and  Pephau,  Captain  Mahan,  Mr.  de  Baguer,  and  Count 
de  Macedo  point  out  that  account  must  be  taken  of  the  difficulties  which 
might  arise  in  the  way  of  an  acceptance  of  the  Russian  propositions.  In  their 
opinion,  they  consist  chiefly  in  the  influence  which  the  parliaments  have  a  right 
to  exercise  over  budgetary  questions. 

There  are  objections  to  the  Governments'  pledging  themselves  in  regard  to 
the  amount  of  the  budgets  on  which  the  national  legislature  must  yet  pass. 
Moreover,  parliaments  are  renewed  sometimes  within  very  short  periods,  and, 
as  Mr.  de  Baguer  observes,  the  budgetary  year,  for  instance  in  Spain,  begins 
on  July  1,  and  in  other  countries  at  a  different  date. 

Count  de  Macedo  observes  furthermore  that  in  Portugal  the  naval  budget  at 
the  same  time  comprises  many  colonial  expenditures. 

Captain  Mahan  insists  on  the  difficulty  of  determining  the  sum  which  is  to 
be  taken  as  a  basis  as  long  as  the  amount  to  be  so  taken  by  the  other  Govern- 
ments is  not  known. 

Captain  Scheine  answers  that  each  Government  shall  be  free  to  increase  its 
present  budget  and  the  tonnage  of  its  fleet  by  as  many  per  cent,  as  the  country 
which  has  indicated  the  largest  increase. 

Captain  Siegel  observes  further  that  a  law  exists  in  Germany  regarding 

the  fleet,  but  he  adds  that  the  expenditures  provided  for  by  this  law  can  be 

[73]  considered  only  as  a  minimum  deemed  absolutely  indispensable.     Germany 

can  by  no  means  be  bound  by  this  law,  and  retains  full  freedom  and  right 

to  increase  her  expenses  if  she  deems  necessary. 

Captain  of  Corvette  Count  Soltyk  does  not  think  that  his  Government  can 
accept  the  proposition ;  personally  he  will  never  consent  to  its  binding  itself  by 
means  of  such  a  pledge.  He  thinks  that  every  country  should  remain  free  to 
increase  its  navy  as  much  as  it  sees  fit. 

The  President  thinks  that  as  it  is  only  a  question  of  a  period  of  three  years, 
it  will  perhaps  not  be  difficult  for  the  Governments  to  reach  an  agreement  with 
their  Parliaments  and  to  have  a  convention  adopted  along  the  lines  of  the  Russian 
propositions. 

As  to  the  Netherlands,  he  thinks  there  will  be  no  insurmountable  obstacle 
in  the  way  of  acceding  to  such  a  convention. 

However,  he  is  aware  of  the  fact,  as  was  observed  by  Mr.  Bille,  that  there 
is  some  danger  in  the  Russian  propositions. 

There  will  be  a  temptation  to  assure  one's  self  a  very  broad  margin  for  the 
three  years.  And  perhaps  there  may  then  arise  a  tendency  to  take  as  much 
advantage  as  possible  of  this  margin  and  to  construct  even  more  ships  than  would 
have  been  built  if  the  international  engagement  had  not  been  concluded. 

While  recognizing  the  difficulties  in  the  way  of  an  immediate  solution  of 
this  question  in  an  affirmative  way,  he  nevertheless  believes  that  the  subcom- 
mission  can  not  take  on  itself  the  responsibility  of  completely  rejecting  the 
Russian  propositions  right  now. 

The  question  is  so  important,  but  at  the  same  time  so  complex,  that  the 
Governments  must  be  left  time  enough  to  examine  it  more  closely. 

He  therefore  proposes  to  leave  the  question  open  as  was  done  in  regard  to 


SIXTH  MEETING,  JUNE  26,  1899  379 

the  question  of  naval  cannon  and  of  guns,  and  to  commend  it  to  the  study  of  the 
Governments,  which  will  eventually  decide  it  at  a  subsequent  conference. 

This  proposition  is  backed  by  Mr.  Mahan. 

Captain  Scheine  thinks  this  proposition  goes  a  little  too  far.  He  would 
prefer  to  have  the  decision  to  be  reached  postponed  until  a  subsequent  meeting, 
either  of  the  subcommission  or  of  the  Commission. 

He  thinks  it  would  still  be  possible  for  a  large  number  of  the  delegates  to 
secure  instructions  during  the  continuance  of  this  Conference. 

The  proposition  of  the  President  is  put  to  a  vote. 

The  following  voted  for  the  proposition:  France,  Japan,  Netherlands, 
Sweden  and  Norway,  and  Turkey. 

The  following  voted  nay:  Denmark,  Great  Britain,  Portugal,  Russia,  Siam. 

The  following  abstained  from  voting :  Germany,  America,  Austria-Hungary, 
Spain,  Italy. 

The  proposition  is  therefore  not  adopted. 

A  vote  is  now  taken  on  the  proposition  to  adjourn,  as  made  by  Mr.  Scheine. 

Denmark,  France,  Great  Britain,  Netherlands,  Portugal,  Russia,  and  Siam 
voted  in  favor  of  the  proposition. 

America  voted  nay. 

Germany,  Austria-Hungary,  Spain,  Italy,  Japan,  Norway  and  Sweden,  and 
Turkey  refrained  from  voting. 

The  subcommission  decides  that  the  proposition  may  be  considered  as  being 
accepted. 

On  motion  of  the  President,  a  committee  of  reporters  is  chosen,  being  com- 
posed of  Messrs.  Bille,  Count  Soltyk,  Scheine,  and  Corragioni  d'Orelli. 

This  committee  is  to  present  to  the  plenary  Commission  a  succinct  report 
on  the  discussion  which  took  place  at  this  meeting  and  on  the  decision  reached 
therein. 

The  subcommission  authorizes  the  president  and  the  bureau  to  draw  up  the 
minutes  of  the  last  meeting. 

The  meeting  adjourns. 


SEVENTH  MEETING 

JUNE  30,  1899 


Jonkheer  van  Karnebeek  presiding. 

The  minutes  of  the  sixth  meeting  are  read  and  adopted. 

The  President,  in  answer  to  a  question  by  Messrs.  Siegel  and  Mahan,  once 

more  defines  the  decision  reached  by  the  subcommission  at  its  last  meeting, 

[74]  to  the  effect  that  the  delegates  are  to  refer  the  Russian  propositions  to 

the  subsequent  study  of  their  respective  Governments  and  that  they  will 

endeavor  to  secure  instructions  in  regard  to  these  propositions  before  the  end 

of  the  Conference. 

In  reply  to  another  question  by  Mr.  Siegel,  it  is  stated  that  the  refraining 
votes  on  a  proposition  are  neither  considered  favorable  or  contrary  to  the 
proposition  in  question. 

The  report  of  the  special  committee  appointed  at  the  previous  meeting  is 
read  and  approved. 

Mr.  Bille  remarks  that  the  idea  which  prevailed  at  the  last  meeting  was 
recognition  of  the  great  difficulties  in  the  way  of  adopting  the  Russian  proposi- 
tions, although  it  v/as  not  desired  to  reject  these  propositions  entirely  and  forever. 

It  was  pointed  out  that  the  solution  of  this  question  concerned  not  only  the 
Governments,  but  also  the  parliaments.  At  all  events  the  Governments  will  be 
the  ones  to  deal  with  the  matter  primarily. 

However,  as  the  subcommission  was  not  competent  to  judge  of  the  relations 
existing  between  the  Governments  and  their  parliaments,  the  committee  of 
reporters  had  to  confine  itself  to  proposing  that  the  question  be  submitted  to 
the  Governments. 

The  President,  recapitulating  the  decision  reached  by  the  subcommission 
and  contained  in  the  report,  remarks  that  the  full  Commission  will  now  be  the 
one  to  pass  on  this  question. 

The  meeting  adjourns. 


380 


PART   III 

SECOND  COMMISSION 


[1] 

PLENARY   COMMISSION 
FIRST   MEETING 

MAY  23,  1899 


Mr.  Martens  presiding. 

The  President  thanks  the  Commission  for  the  honor  it  has  done  him.  He 
hopes  that  at  the  end  of  its  labors  the  Commission  will  be  able  to  say  with  the 
poet :     "  I  have  done  a  little  good,  and  that  is  my  best  work." 

Mr.  Martens  recalls  that  the  task  of  the  Second  Commission  is  to  examine 
Articles  5,  6  and  7  of  the  circular  of  Count  Mouravieff,  relating  to  the  Geneva 
Convention  of  1864,  to  its  extension  to  maritime  war,  and  to  the  revision  of  the 
draft  Declaration  elaborated  by  the  Brussels  Conference  of  1874. 

The  Commission  may  therefore  be  subdivided  into  two  subcommissions,  the 
first  to  examine  the  questions  relating  to  the  Red  Cross  and  the  second  those  con- 
cerning the  Brussels  project  regarding  the  laws  of  war. 

As  president  of  the  first  of  these  subcommissions,  Mr.  Martens  proposes 
Mr.  AssER,  delegate  from  the  Netherlands. 

On  motion  of  Chevalier  Descamps,  Mr.  Martens  is  designated  as  president 
of  the  second  subcommission. 

The  President  proposes  to  the  Commission  to  fix  the  procedure  with  regard 
to  the  record  of  the  meetings.  He  suggests  that  no  authentic  and  printed  minutes 
be  prepared,  but  that  the  member  of  the  Commission  designated  as  reporter  take 
notes  which  the  Commission  may  consult. 

Mr.  Asset  insists  that  it  will  be  necessary  for  the  members  of  the  Commis- 
sion who  have  taken  the  floor  during  a  meeting  to  be  able  to  verify  the  exactness 
of  the  record  as  regards  themselves.     (Approval.) 

Mr.  Renault  explains  that  if  the  reporter  of  a  commission  is  obliged  to  take 
notes  throughout  the  meeting,  he  may  be  prevented  from  advantageously  follow- 
ing and  taking  part  in  the  discussions. 

In  the  second  place,  he  expresses  the  opinion  that  the  reporter  should  not  be 
designated  until  the  discussion  is  closed  and  solutions  have  been  adopted. 

Chevalier  Descamps  proposes  that  as  regards  the  minutes  the  secretariat  be 
instructed  to  prepare : 

1.  As  complete  an  account  as  possible  of  the  meeting,  which  will  not  be 
printed  and  which  will  be  kept  at  the  disposal  of  the  Commission. 

2.  An  analytical  account  summarizing  the  formal  propositions  made  at  meet- 
ings which  will  be  distributed  to  all  the  members. 

This  mode  of  procedure  will  enable  the  minutes  of  the  Commission  not  to 

383 


384  SECOND  COMMISSION 

be  given  an  authentic  and  formal  character  and  will  insure  a  more  free,  intimate, 
and  less  official  discussion. 

As  regards  the  designation  of  the  reporter,  Mr.  Descamps  is  not  of  opinion 
that  it  should  await  the  formation  of  a  majority.  According  to  him,  the  mission 
of  the  reporter  of  a  diplomatic  conference  ought  to  be  to  point  out  to  the  plenary 
assembly  the  general  outline  of  the  discussions  and  the  character  of  the  solutions 
proposed,  without  taking  into  account  his  personal  opinion.     He  is  therefore  of 

opinion  that  the  reporter  may  be  appointed  at  once. 
[2]   The  Commission  indorses  this  view. 

The  President,  with  the  consent  of  the  Commission,  says  that  secrecy  will 
be  guarded  in  respect  to  the  deliberations  and  that  the  minutes  will  be  absolutely 
confidential  in  character.  He  proposes  to  proceed  to  a  first  exchange  of  views 
regarding  the  object  of  the  labors  of  the  Commission. 

Mr.  Renault  observes  that  the  revision  of  the  Geneva  Convention  of  1864 
does  not  figure  in  the  program  outlined  in  the  Russian  circular  of  December  30, 
1898. 

The  meeting  adjourns. 


SECOND   MEETING 

MAY  25,   1899 


Mr.  Martens  presiding. 

The  minutes  of  the  first  meeting  are  read  and  adopted. 

The  President  informs  the  Commission  that  Professor  Nagao  Ariga  has 
been  appointed  technical  delegate  of  the  Japanese  Government  to  the  International 
Peace  Conference. 

Mr.  Martens  invites  the  Commission  to  exchange  its  views  on  the  different 
points  submitted  to  its  deliberations ;  he  thinks  that  Articles  5  and  6  of  the  Rus- 
sian circular  might  be  proposed  for  study  by  the  first  subcommission ;  Article  7 
of  the  same  circular  might  constitute  the  task  assigned  to  the  first  [second]  sub- 
commission. 

He  explains  that  the  discussion  of  the  additional  articles  of  1868  will  neces- 
sarily lead  the  Commission  to  consider  the  articles  of  the  Geneva  Convention  of 
1864,  but  that,  in  order  to  remain  within  the  limits  indicated  by  the  program  of 
Count  MouRAviEFF,  the  Commission  will  have  to  confine  itself  to  expressing 
wishes. 

It  would  therefore  be  useful  for  the  Commission  to  proceed  to  an  exchange 
of  general  views  on  the  two  following  questions : 

1.  Is  it  desirable  that  the  Red  Cross  be  respected  in  maritime  war? 

2.  Should  the  principle  of  the  neutralization  of  relief  vessels  for  shipwrecked 
persons  be  recognized? 

A  general  discussion  of  these  points  would  impart  a  useful  direction  to  the 
labors  of  the  first  subcommission. 

Then  the  questions  relating  to  the  Brussels  draft  Declaration  might  be  exam- 
ined in  the  same  way,  so  as  to  define  the  task  of  the  second  subcommission. 

Colonel  Gilinsky  reads  two  propositions  which  were  prepared  by  the  Russian 
War  Ministry  and  which  appear  to  him  acceptable  as  a  basis  for  the  eventual 
revision  of  the  Geneva  Convention. 

After  an  exchange  of  observations  among  Messrs.  Martens,  Asser,  Beldi- 
man,  and  General  Mounier,  it  is  decided  that  the  propositions  of  Colonel  Gilin- 
sky shall  be  inserted  in  the  minutes  in  order  to  serve  as  materials  for  the  subse- 
quent studies  of  the  question. 

These  propositions  are  worded  as  follows : 

1.  Revision  of  the  Geneva  Convention  of  1864,  taking  into  consideration  the 
propositions  made  by  the  International  Conferences  of  the  Red  Cross  Society  in 
1867,  1869  and  1884. 

The  purpose  of  such  revision  would  be  to  bring  the  provisions  now  in  force 
into  concordance  with  the  conditions  of  battles  of  to-day,  the  great  masses  of 
combatants  requiring  a  prompt  and  adequately  organized  relief. 

For  this  purpose  private  medical  societies,  with  their  own  means  of  transpor- 

385 


386  SECOND  COMMISSION 

tation,  and  foreign  physicians  enjoying  the  protection  of  the  sign  of  the  Red 
Cross,  might  be  permitted  to  participate  in  the  work  of  rehef. 

2.  Creation  of  an  "  International  Red  Cross  Bureau,"  recognized  by  all  the 
Powers  and  established  on  the  principles  of  international  law,  in  order  to  settle  all 
questions  regarding  volunteer  medical  assistance  and  relief  during  war,  in  accord- 
ance with  the  declaration  of  Russia  at  the  Red  Cross  Conference  held  at  Geneva 

in  1884. 
[3]   Chevalier  Descamps  expresses  the  desire  that  the  competency  of  the  Com- 
mission may  be  exactly  determined,  so  that  the  discussion  may  be  limited  to 
the  extent  of  this  competency,  and  he  requests  the  delegates  from  Switzerland  to 
kindly  make  known  any  special  views  which  they  might  have  on  the  questions. 

Mr.  Odier  does  not  think  that  the  Commission  is  competent  to  proceed  to  a 
revision  of  the  Geneva  Convention.  In  order  to  undertake  such  a  work,  it  would 
be  necessary  first  of  all  to  have  the  assistance  of  technical  experts  in  the  medical 
and  sanitary  line,  besides  representation  from  all  the  States  signatory  to  the  Con- 
vention. Under  these  circumstances  Mr.  Odier  thinks  that  it  would  be  well  for 
the  Commission  to  express  its  opinion  right  now,  by  means  of  a  declaration,  re- 
garding the  suitability  of  referring  to  a  special  conference  the  examination  of  the 
revision  of  the  acts  of  1864  and  1868. 

Mr.  Asset  considers  that  a  distinction  should  be  made  between  competency 
in  fact  and  competency  in  law.  It  is  true  that,  for  the  reasons  expressed  by  Mr. 
Odier,  the  Commission  is  incompetent  in  fact  to  pass  on  questions  of  a  medical 
and  sanitary  nature. 

However,  he  does  not  think  that  the  Commission  ought  to  consider  itself 
limited  so  narrowly  to  the  text  of  the  circular  of  Count  Mouravieff,  and  he 
recalls  the  fact  that  in  accordance  with  the  circular  of  Mr.  de  Beaufort  of  April  6, 
1899,  prepared  with  the  consent  of  the  Russian  Government,  the  Conference  will 
have  to  examine  not  only  the  points  set  forth  by  the  Mouravieff  program,  but 
also  "  all  other  questions  connected  with  the  ideas  set  forth  in  the  circular  of 
August  12/24,  1898." 

An  exchange  of  views  along  these  lines  appears  to  him  to  be  within  the  com- 
petency of  the  Commission  and  might,  in  a  form  to  be  determined  by  the  subcom- 
mission,  serve  to  call  the  attention  of  the  Governments  to  the  points  which  have 
been  taken  into  consideration. 

The  President  thinks  that  he  can  interpret  the  passage  cited  from  the  cir- 
cular of  Mr.  de  Beaufort  in  the  sense  indicated  by  Article  35  of  the  Declaration  of 
1874  concerning  the  laws  and  customs  of  war. 

He  thinks,  to  sum  up,  that  the  Commission  is  not  competent  to  raise  ques- 
tions which  depart  from  the  eight  points  of  the  circular  of  Count  Mouravieff, 
but  that  the  first  subcommission  may  express  ideas  and  wishes  which  do  not  bind 
the  Conference. 

As  to  the  task  of  the  second  subcommission,  it  is  defined  by  the  text  of  the 
Declaration  of  1874.  The  Russian  Government  thinks  that  the  time  has  come  to 
proceed  to  a  revision  and  confirmation  of  this  act  which,  although  not  ratified,  has 
been  sanctioned  by  military  practice. 

Upon  an  inquiry  by  Chevalier  Descamps,  the  President  declares  that  the 
delegates  will  have  full  freedom  to  propose  amendments  to  the  dififerent  articles. 

The  Commission  adopts  this  mode  of  procedure. 

The  meeting  adjourns. 


THIRD    MEETING 

JUNE  20,  1899 


Mr.  Martens  presiding. 

The  minutes  of  the  meeting  of  May  25  are  read  and  adopted. 

The  President  says  that  the  order  of  the  day  calls  for  an  examination  of  the 
report  of  the  first  subcommission  and  of  the  articles  proposed  with  a  view  to 
adapting  the  principles  of  the  Geneva  Convention  to  maritime  war.  As  these 
documents  are  before  the  eyes  of  the  Commission,  the  President  deems  it  need- 
less to  read  the  report,  and  thinks  that  it  will  be  sufficient  to  read  the  articles. 

No  observation  having  been  made  regarding  the  propositions  of  the  subcom- 
mission as  a  whole,  the  articles  are  now  read. 

[4]  Article  1 

Military  hospital  ships,  that  is  to  say,  ships  constructed  or  assigned  by  States  specially 
and  solely  with  the  view  to  assist  the  wounded,  sick  and  shipwrecked,  the  names  of  which 
have  been  communicated  to  the  belligerent  Powers  at  the  commencement  or  during  the  course 
of  hostilities,  and  in  any  case  before  they  are  employed,  shall  be  respected  and  cannot  be 
captured  while  hostilities  last. 

These  ships,  moreover,  are  not  on  the  same  footing  as  men-of-war  as  regards  their 
stay  in  a  neutral  port. 

This  article  is  adopted. 

Article  2 

Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  individuals  or 
officially  recognized  relief  societies,  shall  likewise  be  respected  and  exempt  from  capture, 
if  the  belligerent  Power  to  which  they  belong  has  given  them  an  official  commission  and  has 
notified  their  names  to  the  hostile  Power  at  the  commencement  of  or  during  hostilities,  and 
in  any  case  before  they  are  employed. 

These  ships  shall  be  provided  with  a  certificate  from  the  competent  authorities,  declar- 
ing that  they  have  been  under  their  control  while  fitting  out  and  on  final  departure. 


This  article  is  adopted. 


Article  3 


Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  individuals  or  of- 
ficially recognized  societies  of  neutral  countries,  shall  be  respected  and  exempt  from  capture, 
if  the  neutral  Power  to  which  they  belong  has  given  them  an  official  commission  and  has 
notified  their  names  to  the  belligerent  Powers  at  the  commencement  of  or  during  hostilities, 
and  in  any  case  before  they  are  employed. 

This  article  is  adopted. 

387 


388  SECOND  COMMISSION 

Article  4 

The  ships  mentioned  in  Articles  1,  2  and  3  shall  afford  relief  and  assistance  to  the 
wounded,  sick,  and  shipwrecked  of  the  belligerents  without  distinction  of  nationality. 

The  Governments  undertake  not  to  use  these  ships  for  any  military  purpose. 

These  ships  must  in  nowise  hamper  the  movements  of  the  combatants. 

During  and  after  an  engagement  they  will  act  at  their  own  risk  and  peril. 

The  belligerents  will  have  the  right  to  control  and  search  them ;  they  can  refuse  to  help 
them,  order  them  off,  make  them  take  a  certain  course,  and  put  a  commissioner  on  board; 
they  can  even  detain  them,  if  important  circumstances  require  it. 

As  far  as  possible  the  belligerents  shall  enter  in  the  log  of  the  hospital  ships  the  orders 
which  they  give  them. 

This  article  is  adopted. 

Article  5 

Military  hospital  ships  shall  be  distinguished  by  being  painted  white  outside  with  a 
horizontal  band  of  green  about  a  meter  and  a  half  in  breadth. 

The  ships  mentioned  in  Articles  2  and  3  shall  be  distinguished  by  being  painted  white 
outside  with  a  horizontal  band  of  red  about  a  meter  and  a  half  in  breadth. 

The  boats  of  the  ships  above  mentioned,  as  also  small  craft  which  may  be  used  for 
hospital  work,  shall  be  distinguished  by  similar  painting. 

All  hospital  ships  shall  make  themselves  known  by  hoisting,  with  their  national  flag, 
the  flag  with  a  red  cross  provided  by  the  Geneva  Convention. 

Mirza  Riza  Khan  makes  the  foUovi^ing  declaration  regarding  Article  5 : 

In  regard  to  the  last  paragraph  of  Article  5,  and  in  accordance  with  instruc- 
tions which  I  have  just  received  from  Teheran,  I  am  directed  to  inform  the  Com- 
mission that  the  Persian  Government  will  ask  as  a  distinctive  flag  the  white  flag 
with  a  red  sun. 

The  adoption  of  the  red  cross  as  the  distinctive  flag  of  hospitals  was  an  act 
of  courtesy  on  the  part  of  the  Governments  signing  the  Geneva  Convention,  to- 
ward the  Swiss  Federal  Government,  whose  flag  was  adopted,  the  colors  having 
been  reversed  in  order  to  distinguish  it  from  the  Swiss  national  flag. 

We  should  be  happy  to  extend  the  same  courtesy  to  the  honorable  Swiss 
Government  if  this  were  not  impossible  owing  to  the  inquietude  it  would  excite 
in  the  Mussulman  army. 

I  beg  of  the  Commission  to  kindly  take  note  of  this  declaration  by  inserting 
it  in  the  record  of  the  meeting. 

The  President  records  this  declaration  of  the  Persian  delegate. 

Article  5  is  adopted. 

Article  6 

Neutral  merchantmen,  yachts,  or  vessels,  having,  or  taking  on  board,  sick,  wounded,  or 
[5]    shipwrecked  of  the  belligerents,  cannot  be  captured  for  so  doing,  but  they  are  liable 
to  capture  for  any  violation  of  neutrality  they  may  have  committed. 

This  article  is  adopted. 

Article  7 

The  religious,  medical,  and  hospital  staff  of  any  captured  ship  is  inviolable,  and  its 
members  cannot  be  made  prisoners  of  war.  On  leaving  the  ship  they  take  with  them  the 
objects  and  surgical  instruments  which  are  their  own  private  property. 


THIRD  MEETING,  JUNE  20,  1899  389 

This  staff  shall  continue  to  discharge  its  duties  while  necessary,  and  can  afterwards 
leave  when  the  commander  in  chief  considers  it  possible. 

The  belligerents  must  guarantee  to  the  said  staff  when  it  has  fallen  into  their  hands 
the  enjoyment  of  their  salaries  intact. 

This  article  is  adopted. 

Article  8 

Sailors  and  soldiers  on  board  when  sick  or  wounded,  to  whatever  nation  they  belong, 
shall  be  protected  and  tended  by  the  captors. 


This  article  is  adopted. 


Article  9 


The  shipwrecked,  wounded,  or  sick  of  one  of  the  belligerents  who  fall  into  the  power 
of  the  other,  are  prisoners  of  war.  The  captor  must  decide,  according  to  circumstances, 
whether  to  keep  them,  send  them  to  a  port  of  his  own  country,  to  a  neutral  port,  or  even 
to  an  enemy  port.  In  this  last  case,  prisoners  thus  repatriated  cannot  serve  again  while 
the  war  lasts. 

This  article  is  adopted. 

Article  10 

The  shipwrecked,  wounded  or  sick  who  are  landed  at  a  neutral  port,  with  the  consent 
of  the  local  authorities,  must  be  guarded  by  the  latter  so  as  to  prevent  their  again  taking 
part  in  the  operations  of  the  war. 

The  expenses  of  tending  them  in  hospital  and  interning  them  shall  be  borne  by  the  State 
to  which  the  shipwrecked,  sick  or  wounded  belong. 

Mr.  Asset  says  that,  as  president  of  the  first  snbcommission,  he  wishes  to 
give  some  explanations  in  regard  to  the  debate  on  Article  10. 

Several  objections  have  been  presented  against  the  text  proposed.  It  has 
been  said  that  Article  10  seems  to  impose  too  heavy  a  burden  on  neutrals.  It 
has  been  alleged  on  the  other  hand  that  these  provisions  were  not  in  harmony 
with  the  principles  adopted  for  land  warfare. 

These  observations  were  embodied  in  two  amendments,  one  presented  by  the 
delegate  from  Belgium  and  the  other  by  the  delegate  from  Switzerland.  Before 
putting  these  amendments  to  a  vote,  the  President  thought  he  ought  first  to 
consult  the  subcommission  as  to  whether  it  accepted  the  text  of  Article  10  un- 
amended. 

This  procedure,  although  not  entirely  in  conformity  with  parliamentary 
usages,  appeared  to  him  to  place  the  question  in  the  most  impartial  light.  Fol- 
lowing this  vote,  Article  10  unamended  was  adopted  by  a  majority  of  one  vote. 
Now  among  those  who  were  opposed,  some  would  be  willing  to  revise  their  vote 
if  the  text  would  provide  for  the  case  of  a  contrary  understanding  being  reached 
between  the  neutral  and  belligerent  States. 

It  would  seem  that  this  modification  ought  to  satisfy  everybody. 

Article  10  leaves  to  the  neutral  State  full  freedom  to  receive  the  sick  and 
wounded  landed  in  its  ports. 

In  fact,  we  may  believe  that  a  neutral  State  will  never  shirk  this  humane  duty, 
but  it  is  nevertheless  well  to  give  it  the  privilege  of  explaining  itself  on  this  sub- 
ject with  the  belligerents  at  the  beginning  of  the  war.     If  this  view  is  approved, 


390  SECOND  COMMISSION 

it  would  therefore  be  sufficient  to  amend  the  text  as  follows  in  order  to  bring 
everybody  into  accord: 

Article  10 

The  shipwrecked,  wounded,  or  sick,  who  are  landed  at  a  neutral  port, 
with  the  consent  of  the  local  authorities,  must,  unless  an  arrangement  is 
made  to  the  contrary  between  the  neutral  State  and  the  belligerent  States, 
be  guarded  by  the  neutral  State  so  as  to  prevent  their  again  taking  part  in 
the  operations  of  the  war. 

The  expenses  of  tending  them  in  hospital  and  interning  them  shall  be 
borne  by  the  State  to  which  the  shipwrecked,  sick,  or  wounded  belong. 

Chevalier  Descamps  asks  whether  it  would  not  be  sufficient  to  say :  "  unless 
there  is  a  contrary  declaration." 

Mr.  Asser  answers  that  the  use  of  this  expression  would  imperil  the  very 

principles  accepted  by  the  majority.  It  has  been  said  that  the  neutral  States 
[6]  might  without  fear  accept  the  principle  laid  down  by  Article  10,  because  of 

the  freedom  left  them  of  receiving  or  rejecting  the  wounded.  If  we  are 
content  with  a  simple  declaration,  necessarily  one-sided,  we  shall  see  the  anxieties 
of  the  neutrals  aroused  to  the  detriment  of  the  cause  of  the  sick  and  wounded 
whom  we  wish  to  relieve.  On  the  contrary,  a  two-sided  arrangement  would  safe- 
guard all  interests  and  it  was  in  this  spirit  that  the  amendment  was  framed. 

Count  de  Grelle  Rogier  says  that  he  had  formulated  in  regard  to  Article  10 
some  observations  which  seemed  to  him  to  be  based  on  logic  and  equity.  Mr. 
Asser  has  just  proposed  a  compromise,  and,  in  a  spirit  of  conciliation,  the  delegate 
from  Belgium  declares  himself  ready  to  accept  it. 

Mr.  Odier  says  that  he  had  presented  an  amendment  which  had  no  other 
object  than  to  facilitate  the  adoption  of  the  proposition  of  Mr.  de  Grelle  Rogier. 
This  latter  proposition  being  withdrawn,  Mr.  Odier  does  not  insist  on  his  own 
suggestion.  He  wishes,  however,  to  explain  the  reasons  why  the  proposition  of 
Mr.  Asser  did  not  entirely  satisfy  him.  It  would  seem  that  if  the  obligations 
assumed  by  a  neutral  State  are  to  involve  too  lengthy  obligations  and  too  heavy 
burdens,  and  if  the  wounded  who  have  become  valueless  as  far  as  the  war  is  con- 
cerned are  kept  an  indefinite  length  of  time  away  from  their  country,  this  would 
be  somewhat  contrary  to  the  idea  of  humanity. 

Mr.  Odier  adds,  however,  that  in  order  not  to  prevent  the  text  of  Article  10 
from  being  unanimously  approved,  he  will  withdraw  his  amendment. 

Mr.  Corragioni  d'Orelli  declares  that  he  indorses  the  proposition  of  Mr. 
Asser. 

No  further  observation  being  offered,  the  President  says  that  Article  10  is 
adopted  in  its  new  form.     (Applause.) 

Mr.  Odier  says  that  he  wishes  to  comment  upon  the  declaration  made  at 
the  beginning  of  the  meeting  by  the  delegate  from  Persia. 

As  regards  the  modifications  in  the  insignia  of  this  convention  suggested 
to  the  subcommission  by  Turkey,  Siam,  and  the  United  States  of  America  and  to 
the  plenary  Commission  by  Persia,  it  does  not  seem  as  if  the  assembly  were 
competent  to  deal  with  this  question,  and  it  will  be  when  the  Geneva  Convention 
is  submitted  for  revision  that  the  question  of  maintaining  or  changing  its  emblem 
may  be  properly  examined. 

Mirza  Riza  Khan  answers  that  as  he  did  not  attend  the  meetings  of  the  first 


THIRD  MEETING,  JUNE  20,  1899  391 

siibcommission,  he  was  unable  to  make  his  declaration  regarding  Article  5  at  the 
same  time  as  the  representatives  of  Turkey,  Siam,  and  the  United  States. 

He  therefore  thought  that  he  ought  to  make  it  known  when  Article  5  came 
up  for  discussion  before  the  plenary  Commission.  He  agrees  that  the  matter  of 
changing  the  insignia  crin  only  be  examined  by  a  subsequent  conference  charged 
with  revising  the  Geneva  Convention,  but  he  nevertheless  wishes  to  have  his 
declaration  inserted  in  the  minutes  as  evidence  of  the  intentions  of  the  Persian 
Government  in  regard  to  the  form  of  the  insignia. 

The  President  states  that  everybody  agrees  as  to  the  incompetency  of  the 
Commission  to  discuss  these  questions  and  that  they  can  only  be  mentioned  in 
the  minutes. 

Mr.  Rolin  recalls  a  declaration  which  he  made  in  the  subcommission  tend- 
ing to  insure  to  the  Siamese  Government  the  privilege  of  adding  to  the  flag  of 
the  Geneva  Convention  a  sacred  sign  of  the  Buddhist  religion  calculated  to  en- 
hance the  protective  authority  of  this  flag. 

The  President  says  that  this  declaration  will  be  likewise  mentioned  in  the 
minutes. 

The  President  states  that  Articles  1  to  10  proposed  by  the  first  subcommis- 
sion are  therefore  adopted. 

Count  de  Macedo,  first  delegate  of  Portugal,  declares,  while  requesting  the 
Second  Commission  to  record  this  declaration  and  to  consider  it  as  a  general 
reservation  to  the  ten  articles  just  read  and  discussed,  that  the  instructions  of  his 
Government  being  naturally  limited  to  the  question  of  adhesion  to  the  general 
principles  contained  in  the  Mour.wieff  circular,  and  to  the  acceptance  under 
an  equally  general  form  of  the  application  of  these  principles,  his  favorable  though 
silent  vote  on  the  doctrine  of  the  aforesaid  articles  has  no  final  character  even 
within  the  Hmits  that  his  powers  permit  him  to  vote  (that  is,  ad  referendum)  ; 
and  that  this  character  cannot  be  obtained  until  he  receives  from  the  Govern- 
ment of  His  Most  Faithful  Majesty  instructions  given  with  a  full  knowledge  of 
the  text  just  voted  upon. 

The  President  takes  note  of  this  declaration  of  Count  de  Macedo. 
[7]   Mr.  Mahan  reads  the  following  propositions: 

It  is  known  to  the  members  of  the  first  subcommission,  by  whom  these 
articles  were  accepted,  that  I  have  heretofore  stated  that  there  was  an  impor- 
tant omission,  which  I  desired  to  rectify  in  an  additional  article  or  articles. 
The  omission  was  to  provide  against  the  case  of  a  neutral  vessel,  such  as  is 
mentioned  in  Article  6,  picking  up  shipwrecked  on  the  scene  of  a  naval  battle, 
and  carrying  them  away,  either  accidentally  or  intentionally.  What,  I  asked, 
is  the  status  of  such  shipwrecked  combatants? 

My  attention  had  been  absorbed  by  the  case  of  vessels  under  Article  6.  I 
have  since  noticed  that  there  was  equally  an  omission  to  provide  for  the  status 
of  shipwrecked  combatants  picked  up  by  hospital  ships.  In  order  that  non- 
professional men,  men  not  naval  officers,  may  certainly  comprehend  this  point, 
allow  me  to  develop  it. 

On  a  field  of  naval  battle  the  ships  are  constantly  in  movement;  not  merely 
the  movement  of  a  land  battle,  but  a  movement  of  progress,  of  transfer  from 
place  to  place  more  or  less  rapid. 

The  scene  is  here  one  moment;  a  half-hour  later  it  may  be  five  miles  dis- 
tant. 


392  SECOND  COMMISSION 

In  such  a  battle  it  happens  that  a  ship  sinks ;  her  crew  become  shipwrecked ; 
the  place  of  action  shifts;  it  is  no  longer  where  these  men  are  struggling  for 
life;  the  light  cruisers  of  their  own  side  come  to  help,  but  they  are  not  enough; 
the  hospital  ships  with  neutral  flags  come  to  help ;  neutral  ships  other  than  hos- 
pital ships  also  arrive;  a  certain  number  of  shipwrecked  combatants  are  saved 
on  board  neutral  ships.     To  which  belligerent  do  these  men  belong? 

It  may  happen  that  the  neutral  vessel,  hospital  or  otherwise,  has  been  with 
the  fleet  opposed  to  the  sunken  ship. 

After  fulfilling  her  work  of  mercy,  she  naturally  returns  to  that  fleet. 

The  shipwrecked  combatants  fall  into  the  power  of  the  enemy,  although  it 
is  quite  probable  that  the  fleet  to  which  they  belong  may  have  had  the  advantage. 

I  maintain  that  unless  some  provision  is  made  to  meet  this  difficulty,  much 
recrimination  will  arise. 

A  few  private  seamen,  more  or  less,  a  few  non-commissioned  officers,  may 
not  matter,  but  it  is  possible  that  a  distinguished  general  or  valued  officers  of 
lower  grade  may  be  involved. 

This  will  tend  to  bring  into  discredit  the  whole  system  for  hospital  ships; 
but  further,  while  hospital  ships,  being  regularly  commissioned  by  their  own 
Government,  may  be  supposed  to  act  with  perfect  impartiality,  such  presupposi- 
tion is  not  permissible  in  the  case  of  vessels  named  in  Article  6. 

Unless  the  status  of  shipwrecked  combatants  saved  by  them  is  defined,  the 
grossest  irregularities  may  be  expected,  the  notoriety  of  which  will  fully  repay 
the  class  of  men  who  would  perpetrate  them. 

As  many  cases  may  arise,  all  of  which  it  is  impossible  to  meet  specifically, 
I  propose  the  following  additional  articles  based  upon  the  single  general  prin- 
ciple that  shipwrecked  combatants,  being  ipso  facto  combatants  hors  de  combat^ 
are  incapable  of  serving  again  during  the  war,  unless  recaptured  or  until  duly 
exchanged. 

These  additional  articles  may  have  the  following  tenor: 

1.  Neutral  vessels  of  any  kind,  hospital  ships  or  others,  being  on  the 
scene  of  a  naval  engagement,  which  may,  as  an  act  of  humanity,  save  men 
in  peril  of  drowning  from  the  results  of  the  engagement,  shall  not  be  con- 
sidered as  having  violated  their  neutrality  by  that  act  alone. 

They  will,  however,  in  so  doing,  act  at  their  own  risk  and  peril. 

2.  In  case  a  war  vessel  should  demand  the  return  of  the  men  thus  gath- 
ered up,  the  latter  shall  not  be  considered  under  the  cover  of  the  neutral 
flag,  but  shall  be  susceptible  of  capture  and  recapture. 

If  this  demand  is  made,  the  men  in  question  may  be  delivered  up  and 
shall  have  the  same  status  as  if  they  had  not  been  under  a  neutral  flag. 

3.  In  case  these  men,  who  have  thus  escaped  the  consequences  of  the 
fight  through  neutral  interposition,  should  not  be  demanded  by  a  belligerent 
ship,  they  shall  be  considered  as  being  out  of  action,  and  shall  not  serve  during 
the  remainder  of  the  war  unless  duly  exchanged.     The  contracting  Govern- 

[8]  ments  who  are  belligerents  engage  to  prevent  these  men  from  serving  during 
the  continuance  of  the  war  unless  exchanged. 

At  the  request  of  Messrs.  Asser  and  Renault,  the  President  says  that  the 
examination  of  the  new  proposition  presented  by  Mr.  Mahan  will  be  referred  to 
the  drafting  committee  of  the  first  subcommission  and  will  be  made  the  subject 
of  a  report  by  that  committee  to  the  plenary  Commission. 


THIRD  MEETING,  JUNE  20,  1899  393 

The  President  recalls  the  fact  that  the  first  subcommission  expressed  a 
wish  in  regard  to  the  revision  of  the  Geneva  Convention,  and  he  gives  the  floor 
to  Mr.  AssER  in  order  to  explain  this  wish  to  the  Commission. 

Mr.  Asset  says  that  the  Commission,  at  the  beginning  of  its  labors,  brought 
up  the  question  whether  it  was  competent  to  discuss  a  revision  of  the  Geneva 
Convention.  For  reasons  derived  both  from  law  and  fact,  it  did  not  think  it 
could  consider  this  subject.  Nevertheless  the  first  subcommission  desired,  before 
separating,  to  express  a  wish  that  the  revision  might  take  place  in  the  near 
future,  and  it  thought  that  this  wish  might  be  presented  to  the  Conference  in 
the  following  form: 

The  Hague  Conference,  taking  into  consideration  the  preliminary  steps 
taken  by  the  Swiss  Federal  Government  for  the  revision  of  the  Geneva  Con- 
vention, utters  the  varii  that  steps  may  be  shortly  taken  for  the  assembly  of  a 
special  Conference  having  for  its  object  the  revision  of  that  Convention. 

Mr.  Beldiman  says  that  he  fully  indorses  the  rocii  presented,  but  he  would 
like  to  insert  in  the  text,  after  the  word  "  shortly,"  the  following:  and  under  the 
auspices  of  the  Siviss  Federal  Council. 

He  calls  attention  to  the  fact  that  Switzerland  has  acquired  an  impre- 
scriptible title  to  the  gratitude  of  the  civilized  world  for  all  that  relates  to  the 
creation  and  development  of  the  Red  Cross,  and  it  is  rendering  to  it  just  homage 
to  introduce  into  the  proposed  vocii  the  clause  just  indicated. 

The  President  observes  that  it  would  be  placing  a  burden  on  the  Swiss 
Federal  Government  to  decide  that  it  alone  is  competent  to  convoke  the  re- 
vision conference.  He  recalls  the  fact  that  in  1892  an  International  Conference 
of  Red  Cross  Societies  was  held  at  Rome,  in  which  representatives  of  the  Gov- 
ernments signatory  to  the  Convention  took  part. 

This  Conference  asked  the  Italian  Government  to  take  the  initiative  in 
adapting  the  principles  of  the  Geneva  Convention  to  maritime  war.  The  Swiss 
Government  by  no  means  protested  against  this  decision.  Later,  in  1896,  the 
Italian  Government,  while  declaring  its  willingness  to  comply  with  the  wish  of 
the  Conference,  asked  the  Federal  Government  whether  it  would  like  to  take  in 
its  stead  the  initiative  in  this  adaptation. 

Mr.  Martens  concludes  from  this  historical  precedent  that  the  Commission 
ought  to  confine  itself  to  expressing  the  van  as  submitted  to  it  by  Mr.  Asser, 
leaving  to  the  interested  Governments  the  task  of  agreeing  on  the  time  and  place 
oi  the  conference. 

Mr.  Asser  supports  this  view.  He  says  that  the  Conference  need  not  ex- 
press itself  formally  in  regard  to  the  conditions  of  the  revision. 

Moreover,  it  looks  to  him  as  if  the  way  in  which  the  vau  is  formulated  and 
the  mention  made  therein  of  the  preliminary  steps  of  the  Swiss  Federal  Govern- 
ment ought  to  suffice  to  show  that  said  Government  is  implicitly  recognized  as 
having  the  right  to  convoke  the  revision  conference. 

Mr.  Odier  says  that  he  fully  agrees  with  Messrs.  Martens  and  Asser  on 
one  point,  namely,  that  the  Swiss  Government  has  no  monopoly  in  regard  to 
the  convocation  of  the  Conference  and  that  this  right  belongs  equally  to  every 
one  of  the  nations  signatory  to  the  Geneva  Convention.  It  is  true  that  following 
the  Rome  Conference  of    1892  the   Italian  Government  consulted  the  wishes 


394  SECOND  COMMISSION 

of  the  Federal  Government  in  regard  to  a  revision  of  the  Geneva  Convention 
and  its  adaptation  to  maritime  war. 

The  Swiss  Government  agreed  to  bring  about  this  revision  as  soon  as 
circumstances  should  appear  favorable. 

Now  again  that  Government  will  be  grateful  to  the  Conference  if  it  does 
it  the  honor  to  charge  it  with  the  realization  of  this  revision  so  desired  by  all. 

Mr.  Odier  adds  that  the  idea  of  the  Geneva  Convention  was  born  in  his 
country  and  that  Switzerland  considers  to  a  certain  extent  that  she  has  a  right 
to  and  a  particular  interest  in  taking  the  initiative  regarding  everything  relating 
to  the  Convention. 

She  will  therefore  be  very  happy  if  asked  to  convoke  the  revision  con- 
ference on  her  territory. 
[9]   Mr.  Zorn  indorses  the  amendment  of  Mr.  Beldiman.     He  calls  attention 

to  the  fact  that  the  Convention  not  only  bears  the  name  of  a  city  of  Switzer- 
land, but  that  it  is  due  to  the  generous  and  magnanimous  initiative  of  a  Swiss 
for  which  reason  it  must  be  acknowledged  that  Switzerland  has  an  incontestable 
right  to  take  the  initiative  in  resuming  the  labors  connected  with  this  Convention. 
It  is  a  duty  of  honor  to  recognize  her  as  having  this  right.  He  heartily  supports 
the  words  and  the  amendment  of  the  delegate  from  Roumania. 

Mr,  Motono  and  his  Excellency  Count  Nigra  likewise  endorse  the  proposi- 
tion of  Mr.  Beldiman. 

At  the  request  of  Count  de  Macedo,  Mr.  Beldiman  explains  that  his 
amendment  is  by  no  means  for  the  purpose  of  excluding  the  other  signatory 
Powers  from  the  right  to  convoke  the  conference,  but  he  merely  expresses 
the  wish  that  this  convocation  may  take  place  under  the  auspices  of  the  Swiss 
Federal  Council. 

His  Excellency  Sir  Julian  Pauncefote  asks  whether  the  Commission  be- 
lieves it  has  competency  to  formulate  vceux  in  this  manner.  As  to  himself,  he 
does  not  think  that  it  has  a  right  to  impose  on  another  Power  the  formal  obliga- 
tion to  take  the  initiative  in  regard  to  the  revision  of  an  international  act. 

The  President  says  that  such  was  indeed  his  opinion,  at  least  as  regards 
the  mandate  which  it  is  desired  to  give  to  the  Federal  Government. 

Mr.  Asset  observes  again  that  the  wording  of  the  V(ru  which  he  presented 
is  sufficient  to  make  it  understood  that  all  the  members  of  the  Conference  would 
be  glad  to  have  the  Swiss  Federal  Council  take  the  initiative  in  convoking  a  Con- 
ference for  the  revision  of  the  Geneva  Convention. 

Mr.  Beldiman  takes  note  of  the  declaration  of  Mr.  Asser,  who  said  that 
all  the  members  of  the  Conference  would  be  glad  to  have  the  Federal  Council 
take  the  initiative  in  convoking  a  Conference  for  the  revision  of  the  Geneva 
Convention,  and  he  considers  this  declaration  as  an  adhesion  to  the  amend- 
ment which  he  had  just  formulated. 

The  President  puts  to  a  vote  by  roll  call  the  amendment  presented  by  Mr. 
Beldiman. 

Voting  for  this  amendment :  Germany,  Austria-Hungary,  China,  Denmark, 
Spain,  Italy,  Japan,  Luxemburg,  Persia,  Roumania,  Serbia,  Siam,  Switzerland. 

Voting  against:     The  United  States  of  America. 

Not  voting:  Belgium,  France,  Great  Britain,  Greece,  Mexico,  Montenegro, 
Netherlands,  Portugal,  Russia,  Sweden  and  Norway,  Turkey,  and  Bulgaria. 


THIRD  MEETING,  JUNE  20,  1899:  ANNEX  395 

The  President  states  the  result  of  the  vote  as  thirteen  in  favor  of  the 
amendment  of  Mr.  Beldiman,  one  against  it,  and  twelve  abstentions. 

He  thinks  that  under  the  circumstances  he  ought  to  put  to  a  vote  the  text 
of  the  vocu  as  proposed  by  the  subcommission. 

The  vote  takes  place  by  roll  call: 

Voting  for:  Germany,  United  States  of  America,  Austria-Hungary,  Bel- 
gium, China,  Denmark,  Spain,  France,  Greece,  Italy,  Mexico,  Montenegro, 
Netherlands,  Persia,  Portugal,  Russia,  Serbia,  Siam,  Sweden,  Switzerland, 
Turkey,  Bulgaria. 

Not  voting:     Great  Britain,  Japan,  Luxemburg,  Roumania. 

The  President  says  that  the  vceu  presented  by  the  subcommission  is  adopted, 
without  amendment,  by  22  votes  and  4  abstentions. 

He  proposes  that  the  Commission  give  a  vote  of  thanks  to  the  first  sub- 
commission,  to  its  eminent  president,  and  to  its  very  distinguished  reporter. 
(Applause.) 

The  meeting  adjourns. 


Annex  to  the  Minutes  of  the  Meeting  of  June  20 
[10] 

REPORT  PRESENTED  BY  MR.  L.  RENAULT 

The  Second  Commission  has  adopted,  on  the  report  of  a  drafting  com- 
mittee,^ a  series  of  provisions  having  for  its  aim  the  adaptation  of  the  principles 
of  the  Geneva  Convention  to  maritime  warfare.  It  now  submits  these  pro- 
visions to  the  vote  of  the  Conference  and  accompanies  them  with  this  report, 
which  is  designed  to  explain  the  reasons  for  the  articles  proposed. 

To  the  Second  Commission  (first  subcommission)  was  assigned  the  duty  of 
examining  points  5  and  6  of  Count  Mouravieff's  circular.  It  has  been  assumed 
that  it  is  desirable  to  adapt  the  principles  of  the  Geneva  Convention  of  1864  to 
maritime  wars,  and  also  that  it  is  proper  to  take  the  additional  articles  of  1868 
as  a  basis.  The  latter  articles  gave  rise  to  criticism  very  soon  after  their  signa- 
ture, and  have  been  for  thirty  years  the  subject  of  a  great  deal  of  study.  It 
now  becomes  necessary  to  take  those  criticisms  into  account,  to  profit  by  their 
discussions,  and  to  decide  on  some  project  which  will  reconcile  the  interests 
involved  and  will  also  satisfy  the  hope  that  has  been  expressed  for  so  long  a 
time  by  individuals  and  societies  of  the  highest  eminence  that  maritime  warfare 
should  no  longer  be  deprived  of  the  humanitarian  and  charitable  element  which 
the  Geneva  Convention  has  added  to  war  on  land.  We  think  that  the  preparatory 
work  on  this  subject,  so  earnestly  desired  by  public  opinion,  is  now  sufficiently 
done  and  that  it  is  now  time  to  obtain  results.  We  hope  that  our  work  will  per- 
mit the  Conference  to  do  this  and,  with  a  complete  knowledge  of  the  matter,  to 
take  action  by  adopting  a  text  which  may  be  easily  transformed  into  an  inter- 
national convention. 

1  This  committee  consisted  of  Vice  Admiral  Fisher,  Captain  Scheine,  Captain  Siegel, 
and  Professor  Renault  as  reporter.  Lieutenant  Colonel  Charles  a  Court  and  Lieutenant 
OvTCHiNNiKOW  also  participated  in  the  work  of  this  committee  as  associate  members. 


396  SECOND  COMMISSION 

We  have  been  guided  by  the  following  general  ideas.  In  the  first  place,  we 
confined  ourselves  to  general  principles  only,  and  did  not  enter  into  details  of 
organization  and  regulation  which  are  for  each  State  to  settle  according  to  its 
own  interests  or  customs.  We  determine  what  the  legal  status  of  hospital  ships 
should  be  in  international  law;  but  we  do  not  determine  what  shall  constitute 
such  ships,  nor  do  we  distinguish  Government  vessels  from  vessels  of  relief  so- 
cieties, nor  do  we  say  whether  boats  belonging  to  private  individuals  may  be 
attached  to  the  hospital  service  during  a  war.  These  are  questions  which  must 
be  handled  by  the  several  Governments,  because  circumstances  are  so  different  that 
a  uniform  solution  cannot  be  applied.  The  assistance  rendered  by  private 
charity  will  be  greater  or  less,  according  to  the  country.  Then  again,  we  must 
not  be  so  preoccupied  with  the  demands  of  humanity  that  we  are  oblivious  of 
the  necessities  of  warfare ;  we  must  avoid  laying  down  rules  which,  even  though 
inspired  by  sentiments  of  humanity,  are  likely  to  be  disregarded  often  by  the 
combatants  as  unduly  impeding  their  freedom  of  action.  Humanity  gains  little 
by  the  adoption  of  a  rule  that  remains  a  dead  letter ;  and  the  feeling  of  respect 
for  engagements  is  but  weakened.  It  is  accordingly  indispensable  to  impose 
only  such  obligations  as  can  be  fulfilled  in  all  circumstances  and  to  leave  to  the 
combatants  all  the  latitude  they  require.  This,  it  is  to  be  hoped,  will  not  be  so 
used  as  needlessly  to  hinder  relief  work. 

The  provisions  to  be  decided  on  fall  into  three  classes :  we  have  to  make 
rules  regarding  the  status,  first,  of  the  vessels  engaged  in  rehef  work  (Articles 
1  to  6)  ;  secondly,  of  the  persons  so  engaged  (Article  7)  ;  and  thirdly,  of  the 
wounded,  sick  or  shipwrecked  (Articles  8  and  9). 

VESSELS 

There  may  be,  as  a  matter  of  fact,  vessels  of  very  different  kinds  engaged  in 
either  permanent  or  casual  hospital  service. 

Military  Hospital  Ships 

At  the  Geneva  Conference  of  1868,  a  variety  of  opinions  existed  as  to  the 
status  that  such  ships  should  be  given.  After  allowing  them  the  benefit  of  neu- 
trality under  certain  conditions,  the  ninth  additional  article  was  finally  adopted, 
as  follows : 

The  military  hospital  ships  remain  under  martial  law  in  all  that  concerns 
[11]  their  stores;  they  become  the  property  of  the  captor,  but  the  latter  must 
not  divert  them  from  their  special  appropriation  during  the  continuance  of 
the  war. 

In  1869  the  French  Government  asked  that  the  following  provision  be  added 
to  Article  9: 

The  vessels  not  equipped  for  fighting,  which,  during  peace,  the  Govern- 
ment shall  have  officially  declared  to  be  intended  to  serve  as  floating  hospital 
ships,  shall,  however,  enjoy  during  the  war  complete  neutrality,  both  as 
regards  stores,  and  also  as  regards  their  staff,  provided  their  equipment  is 
exclusively  appropriated  to  the  special  service  on  which  they  are  employed. 

That  the  British  Government  supported  this  view  may  be  seen  in  the  note 


THIRD  MEETING,  JUNE  20,  1899:  ANNEX  397 

addressed  to  Prince  de  la  Tour  d'Auvergne  by  Count  Clarendon,  January  21, 
1869. 

The  Commission  has  expressed  itself  as  in  favor  of  the  plan  proposed  in 
1869,  although  it  is  of  the  opinion  that  a  single  general  rule  can  be  formulated 
to  take  the  place  of  Article  9  with  the  additional  provision  just  quoted.  It  has 
seemed  indispensable  to  remove  the  ships  under  consideration  from  exposure  to 
the  vicissitudes  of  warfare,  and  at  the  same  time  to  take  precaution  against  the 
commission  of  abuses. 

The  Commission  accordingly  proposes  to  exempt  from  capture  ships  con- 
structed or  assigned  by  States  specially  and  solely  with  a  view  to  assist  the 
wounded,  sick  and  shipwrecked.  Each  State  will  construct  or  assign  as  it  sees 
fit  the  ships  intended  for  hospital  service;  no  particular  type  of  vessel  should 
be  required  of  it.  The  essential  point  is  that  the  ships  shall  have  no  other  char- 
acter than  that  of  hospital  ships,  and  consequently  cannot  carry  anything  that 
is  not  intended  for  the  sick  or  wounded  and  those  caring  for  them,  and  that 
might  be  used  for  acts  of  hostility. 

As  each  belligerent  ought  to  know  what  ships  of  his  adversary  are  accorded 
particular  immunities,  the  names  of  these  must  be  communicated  officially. 
When  should  this  communication  be  made?  Naturally  at  the  very  beginning  of 
hostilities.  But  it  would  be  too  stringent  a  rule  to  accept  only  notifications  made 
at  that  time.  A  belligerent  may  have  been  taken  unawares  by  war  and  not  have 
hospital  ships  already  constructed  or  assigned;  or  the  war  might  take  on  such 
great  proportions  that  the  existing  hospital  ships  would  be  deemed  insufficient. 
Would  it  not  be  cruel  to  refuse  belligerents  the  privilege  of  augmenting  their 
hospital  service  to  meet  the  needs  of  the  war,  and  consequently  of  fitting  up  new 
ships  ?  This  is  admitted.  Notification  may  then  be  made  even  during  the  course 
of  hostilities,  but  it  is  to  precede  the  employment  of  the  ship  in  its  new  service. 

This  notification  of  the  names  of  military  hospital  ships  interests  primarily 
the  belligerents ;  it  may  also  be  of  interest  to  neutrals  since,  as  will  be  explained, 
a  special  status  is  enjoyed  by  such  ships  in  neutral  ports.  It  is  accordingly  de- 
sirable that  the  belligerents  acquaint  neutral  States  with  the  names  of  these 
vessels,  even  if  only  by  publication  in  their  official  journals. 

The  assignment  of  a  vessel  to  hospital  service  cannot  of  course,  after  such 
notification  to  the  adversary,  be  changed  while  the  war  lasts.  Otherwise,  abuses 
would  be  possible ;  as,  for  instance,  a  hospital  ship  might  thus  be  enabled  to 
reach  a  given  destination  and  then  might  be  transformed  into  a  vessel  designed 
to  take  part  in  hostilities. 

In  defining  the  immunity  granted  military  hospital  ships,  we  have  avoided 
the  words  "  neutrals  "  and  "  neutrality,"  which  are  in  themselves  inexact  and 
have  long  given  rise  to  just  criticism,  as  was  seen  in  the  subcommission.  We 
propose  saying  simply  that  these  vessels  "  shall  be  respected  and  cannot  be 
captured."  In  this  way  we  state  concretely  and  precisely  the  two  principal  con- 
sequences understood  to  flow  from  the  abstract  idea  of  neutrality.  These  ships 
must  not  be  attacked.  Their  character  as  hospital  ships  is  to  protect  them  from 
being  made  the  object  of  measures  employed  against  ships  of  war,  just  as  am- 
bulances and  military  hospitals  are  respected  by  belligerents  under  Article  1  of  the 
Convention  of  1864.  The  respect  thus  assured  hospital  ships  does  not  preclude, 
as  we  shall  show  later  in  speaking  of  Article  4,  such  precautionary  measures  as 
may  be  necessary. 


398  SECOND  COMMISSION 

Again,  military  hospital  ships  are  not  to  be  subjected  to  the  law  of  prize 
that  naturally  applies  to  all  ships  of  the  enemy.  Here  we  have  in  the  higher 
interests  of  humanity  common  to  the  belligerents  a  renunciation  of  an  incon- 
testable right. 

What  has  been  said  has  only  to  do  with  the  relations  between  belligerents. 
In  such  relations  a  special  status  is  created  for  military  hospital  ships,  and 
they  are  not  treated  as  hostile  ships  of  war.  But  it  has  seemed  necessary 
[12]  to  extend  the  same  principle  to  the  relations  between  these  vessels  and 
neutral  ports,  for  otherwise  the  authorities  of  those  ports  might  class  the 
hospital  ships  with  the  naval  vessels  of  the  belligerent  to  which  they  belong,  and 
so  place  their  stay,  revictualing,  and  departure  under  the  same  strict  rules  as 
are  imposed  upon  men-of-war.  This  would  not  be  reasonable.  We  must  have 
a  precise  rule  both  to  avoid  any  difficulty  between  hospital  ships  and  neutral 
port  authorities  as  well  as  any  complaint  on  the  part  of  belligerents.  Apart 
from  this,  these  military  hospital  ships  will  naturally  be  treated  like  men-of-war, 
notably  with  respect  to  the  advantage  of  exterritoriality.  The  status  of  military 
hospital  ships  might  therefore  be  regulated  as  follows : 

Article  1 

Military  hospital  ships,  that  is  to  say,  ships  constructed  or  assigned  by  States  specially 
and  solely  with  a  view  to  assist  the  wounded,  sick  and  shipwrecked,  the  names  of  which 
have  been  communicated  to  the  belligerent  Powers  at  the  commencement  or  during  the 
course  of  hostilities,  and  in  any  case  before  they  are  employed,  shall  be  respected  and  can- 
not be  captured  while  hostilities  last. 

These  ships,  moreover,  are  not  on  the  same  footing  as  men-of-war  as  regards  their 
stay  in  a  neutral  port. 

Hospital  Ships  of  Belligerents,   Other  than   Government  Vessels 

The  thirteenth  additional  article  of  1868  deals  with  hospital  ships  that  are 
equipped  at  the  expense  of  relief  societies.  We  preserve  the  provision  as  re- 
gards them  with  a  few  modifications.  The  societies  meant  are  those  officially 
recognized  by  each  belligerent;  the  expression  used  in  Article  13  is  too  vague 
and  at  the  same  time  ambiguous.  The  word  "  neutral,"  used  therein  to  define 
the  status  of  these  vessels,  is  avoided  for  the  reasons  given  in  connection  with 
the  preceding  article. 

Finally,  the  same  notification  from  belligerent  to  belligerent  is  prescribed 
as  for  military  hospital  ships,  and  for  the  same  reasons. 

The  provision  of  Article  13  has  been  supplemented  in  a  useful  way  by 
granting  to  boats  which  individuals  may  wish  to  devote  to  the  hospital  service 
the  same  immunity  from  the  moment  they  present  the  same  guaranties.  This 
may  be  a  valuable  resource,  for  in  several  countries  owners  of  pleasure  yachts 
have  expressed  their  intention  of  devoting  them  to  the  hospital  service  in  time 
of  war. 

Article  2 

Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  individuals  or 
officially  recognized  relief  societies,  shall  likewise  be  respected  and  exempt  from  capture,  if 
the  belligerent  Power  to  which  they  belong  has  given  them  an  official  commission  and  has. 
notified  their  names  to  the  hostile  Power  at  the  commencement  of  or  during  hostilities,  and 
in  any  case  before  they  are  employed. 


THIRD  MEETING,  JUNE  20,  1899:  ANNEX  399 

These  ships  shall  be  provided  with  a  certificate  from  the  competent  authorities,  declar- 
ing that  they  had  been  under  their  control  while  fitting  out  and  on  final  departure. 

Neutral  Hospital  Ships 

The  future  will  tell  whether  neutral  relief  work  will  take  place  in  naval  wars 
and  if  so  to  what  extent.  We  confine  ourselves  to  saying  that  it  is  proper  under 
conditions  that  appear  to  carry  satisfactory  guaranties.  Such  relief  vessels  must 
be  furnished  by  their  Government  with  an  ofificial  commission  which  shall  only 
be  granted  upon  knowledge  of  the  exclusively  hospital  character  of  the  vessels 
and  their  names  must  be  made  known  to  the  belligerent  Powers. 

There  was  some  thought  of  requiring  neutral  hospital  ships  to  place  them- 
selves under  the  direct  authority  of  one  or  other  of  the  belligerents,  but  careful 
study  has  convinced  us  that  this  would  lead  to  serious  difficulties.  What  flag 
would  these  ships  fly?  W^ould  it  not  be  somewhat  inconsistent  with  the  concept 
of  neutrality  for  a  ship  with  an  official  commission  to  be  incorporated  in  the 
navy  of  one  of  the  belligerents?  It  seemed  to  us  sufficient  to  have  these  vessels, 
which  are  primarily  under  the  control  of  the  Government  from  which  they  have 
received  their  commissions,  subjected  to  the  authority  of  the  belligerents  to  the 
extent  provided  in  Article  4  below. 

Article  3 

Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  individuals  or 
officially  recognized  societies  of  neutral  countries,  shall  be  respected  and  exempt  from  cap- 
ture, if  the  neutral  Power  to  which  they  belong  has  given  them  an  official  commission,  and 
has  notified  their  names  to  the  belligerent  Powers  at  the  commencement  of  or  during  hos- 
tilities, and  in  any  case  before  they  are  employed. 

Rules'  common  to  Hospital  Ships 

The  immunity  granted  to  the  ships  just  spoken  of  is  not  based  on  their 

own  interests  but  on  the  interests  of  the  victims  of  war  to  whom  they 

[13]   purpose  carrying  relief;  and  these  interests,  however  worthy  of  respect, 

must  not  cause  us  to  lose  sight  of  the  purpose  of  warfare.     This  twofold 

idea  explains  two  series  of  provisions. 

In  the  first  place  the  humanitarian  purpose  must  not  be  entirely  selfish. 
The  ships  in  question  should  offer  their  assistance  to  the  victims  of  war  without 
distinction  as  to  nationality.  This  does  not  apply  alone  to  neutral  ships  which, 
for  example,  give  charitable  aid  to  both  parties ;  it  applies  with  equal  force  to 
the  vessels  of  the  belligerents.  In  this  way  the  immunity  which  is  granted  them 
finds  its  justification.  Each  belligerent  yields  up  the  right  of  capturing  vessels 
of  this  description  belonging  to  its  adversary,  and  this  renunciation  is  prompted 
both  by  a  charitable  motive  and  by  a  well-understood  self-interest,  since  when 
an  opportunity  arises  these  vessels  will  render  service  to  their  own  sailors  as 
well  as  to  those  of  the  enemy. 

It  must  be  perfectly  understood  that  these  vessels  are  not  to  serve  any 
other  purpose,  that  they  cannot  under  any  pretext  be  directly  or  indirectly  em- 
ployed to  further  any  military  operation:  as  gathering  information,  carrying 
dispatches,  or  transporting  troops,  arms,  or  munitions.  The  contracting  Govern- 
ments in  signing  the  proposed  convention  engage  their  honor  in  this  sense.  It 
would  be  perfidy  to  disregard  it. 


400  SECOND  COMMISSION 

While  holding  scrupulously  to  their  charitable  role,  hospital  ships  must  in 
no  way  hamper  the  movements  of  the  belligerents.  The  latter  can  demand,  ac- 
cept, or  refuse  their  help.  They  may  order  them  to  move  off  and  in  so  doing 
they  may  determine  in  what  direction  they  shall  go.  In  the  latter  case  it  may 
sometimes  seem  necessary  to  put  a  commissioner  on  board  to  ensure  complete 
execution  of  the  orders  given.  Finally,  in  particularly  serious  circumstances 
the  rights  of  the  belligerents  may  go  to  the  length  of  detaining  hospital  ships; 
as  for  instance  when  necessary  to  preserve  absolute  secrecy  of  operations. 

In  order  to  obviate  disputes  respecting  the  existence  or  the  meaning  of  an 
order  it  is  desirable  that  the  belligerent  should  record  the  order  on  the  log  of  the 
hospital  ship.  This,  however,  may  not  always  be  possible ;  the  condition  of  the 
sea  or  extreme  urgency  may  preclude  this  formality ;  and  so  its  performance 
ought  not  to  be  absolutly  requisite.  The  hospital  ship  would  not  be  permitted  to 
invoke  the  absence  of  such  a  record  from  its  log  in  order  to  justify  it  in  disre- 
garding the  orders  received,  if  these  orders  could  be  proved  in  another  way. 

It  has  sometimes  been  proposed  to  fix  upon  special  signals  for  ships  asking 
for  relief  and  for  hospital  ships  offering  it.  The  Commission  believes  that 
no  special  provision  is  necessary  on  this  point,  that  the  international  signal  code 
as  adopted  by  all  navies  is  sufficient  for  the  end  in  view. 

Finally,  it  goes  without  saying  that  the  belligerents  should  have  the  right 
to  control  and  search  all  hospital  ships  without  exception.  They  must  be  able 
to  convince  themselves  that  no  abuse  is  committed  and  that  these  ships  are  in 
no  way  diverted  from  their  charitable  commission.  The  right  of  search  is  here 
the  necessary  counterpart  of  their  immunity  and  it  should  not  be  surprising 
to  see  it  applied  even  to  Government  vessels.  These  vessels  would  be  searched 
and  captured  if  left  under  the  regime  of  the  common  law ;  search  therefore  does 
not  injure  their  situation;  it  is  merely  a  condition  of  the  more  favorable  status 
granted  them. 

It  is  proper  to  observe  that  searching  hospital  ships  is  important  not  only  to 
see  that  these  vessels  do  not  depart  from  their  role,  but  also  to  ascertain  the 
condition  of  the  wounded,  sick,  or  shipwrecked  who  may  be  on  board,  as  will  be 
hereafter  explained  in  connection  with  Article  9. 

The  provisions  here  reproduced  are  almost  textually  borrowed  from  para- 
graphs 4,  5,  6  and  7  of  the  thirteenth  additional  article ;  we  have  merely  extended 
them  to  all  hospital  ships  without  distinction  inasmuch  as  we  grant  immunities 
to  all  ships. 

Article  4 

The  ships  mentioned  in  Articles  1,  2  and  3  shall  afford  relief  and  assistance  to  the 
wounded,  sick,  and  shipwrecked  of  the  belligerents  without  distinction  of  nationality. 

The  Governments  undertake  not  to  use  these  ships  for  any  military  purpose. 

These  ships  must  in  nowise  hamper  the  movements  of  the  combatants. 

During  and  after  an  engagement  they  will  act  at  their  own  risk  and  peril. 

The  belligerents  will  have  the  right  to  control  and  search  them ;  they  can  refuse  to 
help   them,   order  them   off,   make   them   take   a   certain   course,   and   put   a   commissioner 

on  board ;  they  can  even  detain  them,  if  important  circumstances  require  it. 
[14]    As  far  as  possible  the  belligerents  shall  enter  in  the  log  of  the  hospital  ships  the 
orders  which  they  give  them. 


THIRD  MEETING,  JUNE  20,  1899:  ANNEX  401 

Distinctive  Signs  of  Hospital  Ships 

Hospital  ships  ought  to  make  their  character  known  in  an  unmistakable 
manner;  they  have  the  greatest  interest  in  so  doing.  We  have  taken  the  pro- 
visions of  paragraph  3  of  the  twelfth  additional  article  and  paragraph  3  of 
Article  13,  slightly  modifying  the  wording  which  is  no  longer  suitable  for  vessels 
of  the  present  day. 

All  vessels  devoted  exclusively  to  hospital  service  are  to  have  a  band  of 
green  or  red  of  the  breadth  indicated.  As  this  might  be  impossible  for  their 
boats  as  well  as  for  yachts  or  small  craft  which  may  be  used  for  hospital  work, 
these  shall  be  similarly  banded  in  such  proportions  as  their  dimensions  permit. 

These  vessels  shall  make  themselves  known  by  hoisting  their  own  flag  to- 
gether with  the  white  flag  with  the  red  cross  provided  by  the  Geneva  Convention. 
The  rule  which  is  laid  down  for  us  by  that  Convention  applies  to  all  hospital  ships 
whether  enemy  or  neutral.  The  difficulty  raised  in  the  case  of  the  latter  is  done 
away,  as  is  explained  above  in  connection  with  Article  3. 

Article  5 

Military  hospital  ships  shall  be  distinguished  by  being  painted  white  outside  with  a 
horizontal  band  of  green  about  a  meter  and  a  half  in  breadth. 

The  ships  mentioned  in  Articles  2  and  3  shall  be  distinguished  by  being  painted  white 
outside  with  a  horizontal  band  of  red  about  a  meter  and  a  half  in  breadth. 

The  boats  of  the  ships  above  mentioned,  as  also  small  craft  which  may  be  used  for 
hospital  work,  shall  be  distinguished  by  similar  painting. 

All  hospital  ships  shall  make  themselves  known  by  hoisting,  with  their  national  flag, 
the  white  flag  with  a  red  cross  provided  by  the  Geneva  Convention. 

Neutral  Merchant  Vessels 

We  have  to  do  here  with  neutral  vessels  that  happen  for  the  time  being  to 
be  transporting  shipwrecked,  wounded,  or  sick,  whether  they  have  been  specially 
chartered  to  do  so  or  have  chanced  to  be  in  a  position  to  receive  these  victims 
of  warfare.  Strictly  under  the  law,  such  vessels  carrying  the  wounded,  sick, 
or  shipwrecked  of  one  belligerent  could,  on  meeting  a  war-ship  of  the  other 
belligerent,  be  considered  fair  prize  for  helping  the  Power  whose  nationals  they 
were  carrying.  But  every  one  is  agreed  that  this  harsh  consequence  should 
be  prevented,  and  that  these  vessels  should  not  suffer  punishment  for  their 
charitable  aid,  but  should  be  left  their  freedom.  Here  we  see  emphasized  the  ad- 
vantage of  avoiding  the  term  "  neutrality "  in  describing  the  immunity  from 
capture  granted  to  certain  ships:  for  otherwise  we  should  have  to  use  a  very 
strange  form  of  speech  in  declaring  that  the  "  neutral  "  ships  of  which  we  are 
speaking  are  "  neutralized." 

On  the  other  hand,  these  vessels  cannot  rely  on  the  charitable  cooperation 
they  extend  to  escape  the  consequences  of  unneutral  service.  Such  a  case  would 
be  presented  if  they  carried  contraband  of  war,  or  if  they  violated  a  blockade. 
They  would  be  liable  to  the  usual  consequence  of  such  acts. 

In  brief,  a  neutral  ship  does  not  alter  its  status  as  a  neutral  one  way  or 
another  by  carrying  wounded,  sick,  or  shipwrecked.  Probably  this  is  what  was 
meant  by  the  second  paragraph  of  additional  Article  10,  but  the  phraseology 
employed  was  not  clear,  and,  as  we  know,  the  British  Government  sought  an 
explanation.     The  provision  which  we  now  submit  is  in  harmony  with  juridical 


402  SECOND  COMMISSION 

principles  and   with  the   interpretation   agreed   upon  between   the   British   and 
French  Governments  in  1869.^ 

Article  6 

Neutral  merchantmen,  yachts,  or  vessels,  having,  or  taking  on  board,  sick,  wounded, 
or  shipwrecked  of  the  belligerents,  cannot  be  captured  for  so  doing,  but  they  are  liable  to 
capture  for  any  violation  of  neutrality  they  may  have  committed. 

It  will  be  noticed  that  we  are  not  proposing  any  article  covering  the  case 
where  a  merchant  vessel  of  one  of  the  belligerents  is  carrying  sick  or  wounded. 
In  the  absence  of  such  a  provision  the  common  law  prevails  and  the  vessel 

is,  consequently,  exposed  to  capture.  This  seems  logical  and  correct  in  prin- 
[15]   ciple.     Paragraph  one  of  the  tenth  additional  article  allows  the  ship,  if 

charged  exclusively  with  removal  of  sick  and  wounded,  to  be  "  protected 
by  neutrality";  it  would  not  be  so  where  there  were  passengers  and  goods  be- 
sides the  sick  and  wounded.     We  have  not  deemed  this  a  proper  distinction. 

Similarly,  the  Commission  does  not  propose  for  adoption  any  text  cor- 
responding to  the  sixth  additional  article,  as  the  case  provided  therein  seemed 
included  in  those  already  dealt  with  and  accordingly  to  require  no  special  men- 
tion. That  article  deals  with  boats  which  at  their  own  risk  and  peril,  during 
and  after  an  engagement,  pick  up  the  shipwrecked  or  wounded,  or  which  having 
picked  them  up,  convey  them  on  board  a  neutral  or  hospital  ship.  If  these  boats 
belong  to  the  neutral  or  hospital  ship,  they  have  the  same  character  as  their 
ship;  they  cannot  be  captured  under  the  rules  already  laid  down.  If,  on  the 
other  hand,  they  belong  to  a  war-ship  or  merchantman  of  one  of  the  belligerents, 
they  may  be  captured  by  the  other  belligerent.  No  special  circumstance  appears 
to  exist  in  their  case  to  remove  them  from  the  application  of  the  principles  already 
stated,  which  appear  to  us  to  cover  all  probable  cases.  We  have  thus  dealt  with 
the  sixth  point  of  Count  Mouravieff's  circular. 

THE  MEDICAL  PERSONNEL 

There  is  no  need,  theoretically,  to  concern  ourselves  with  the  medical  per- 
sonnel on  board  a  hospital  ship ;  as  the  ship  itself  is  respected,  the  personnel 
it  carries  will  not  be  disturbed  in  the  discharge  of  duty.  But  the  case  will  be 
dififerent  with  a  war  vessel  that  falls  into  the  power  of  the  enemy  and  has  on 
hoard  a  medical  staff ;  we  may  also  imagine  an  enemy  merchantman  carrying  sick 
and  wounded  with  physicians  and  nurses  to  care  for  them.  It  would  be  well 
to  decide,  by  analogy  with  land  warfare,  that  whenever  a  ship  is  captured,  the 
medical  personnel  thereon  shall  be  inviolable,  or  in  other  words,  shall  not  be 
made  prisoners  of  war.  The  terms  "  neutral  "  and  "  neutrality "  should  be 
eschewed  in  speaking  of  persons  as  well  as  of  ships. 

The  personnel  should  continue  to  perform  their  functions  so  far  as  neces- 
sary. Possibly  the  victor  may  not  have  at  his  disposal  a  sufficient  number  of 
physicians  and  nurses  to  take  care  of  the  sick  who  have  fallen  into  his  power. 

It  is  well  to  lay  down  the  principle  that  the  medical  personnel  in  the  hands 
of  the  enemy  are  not  prisoners  of  war,  but  not  to  say  just  when  they  will  have 
the  right  to  leave.     This  point  must  be  left  to  the  discretion  of  the  commander 

1  Letter  of  the  Earl  of  Cf-arexdon  of  January  21,  1869,  and  reply  of  Prince  de  la  Tour 
d'Auvergne  of  the  following  February  26th. 


THIRD  MEETING,  JUNE  20,  1899 :  ANNEX  403 

in  chief,  as  circumstances  vary  and  do  not  well  lend  themselves  to  precise  regula- 
tions. The  commander,  of  course,  must  be  imbued  with  the  knowledge  that  he 
has  no  right  to  detain  them  arbitrarily,  since  they  are  not  prisoners  of  war. 

Lastly,  we  must  ensure  that  this  personnel  be  paid  for  the  time  during  which 
they  are  detained  with  the  enemy. 

We  may  have  some  hesitation  as  to  the  amount  of  this  pay.  Shall  it  be 
what  the  physicians  who  are  detained  had  in  their  own  army,  or  what  physicians 
of  the  same  grade  in  the  enemy's  army  receive?  The  stricter  view  is  that  it 
should  be  only  the  lower  figure.  It  has,  however,  seemed  simpler  and  fairer 
to  allow  the  physicians  the  enjoyment  of  their  salaries  intact,  without  entering 
into  details  about  salaries  prevailing  with  the  belligerent  in  whose  hands  the 
physicians  are. 

The  text  proposed  below  is  taken  from  the  seventh  and  eighth  additional 
articles,  which  have  been  changed  in  but  a  few  points. 

Article  7 

The  religious,  medical,  and  hospital  staff  of  any  captured  ship  is  inviolable,  and  its 
members  cannot  be  made  prisoners  of  war.  On  leaving  the  ship  they  take  with  them  the 
objects  and  surgical  instruments  which  are  their  own  private  property. 

This  staff  shall  continue  to  discharge  its  duties  while  necessary,  and  can  afterwards 
leave  when  the  commander  in  chief  considers  it  possible. 

The  belligerents  must  guarantee  to  the  said  stafif  when  it  has  fallen  into  their  hands 
the  enjoyment  of  their  salaries  intact. 

WOUNDED,  SICK,  OR  SHIPWRECKED 

The  general  fundamental  principle  of  the  Geneva  Convention,  which  is  that 
there  exists  an  obligation  to  give  succor  to  the  victims  of  military  operations, 
is  one  that  should  be  applied  alike  to  war  on  land  and  war  on  sea.  This  idea 
has  been  given  application  in  connection  with  hospital  ships  (see  Article  4, 
paragraph  1).  It  also  finds  expression  in  the  first  paragraph  of  additional  Ar- 
ticle 11  (our  Articles). 

[16]  Article  8 

Sailors  and  soldiers  on  board  when  sick  or  wounded,  to  whatever  nation  they  belong, 
shall  be  protected  and  tended  by  the  captors. 

In  the  provision  submitted  to  the  Conference  by  the  Commission,  we  have 
spoken  of  wounded,  sick,  and  shipwrecked,  not  of  victims  of  maritime  warfare. 
The  latter  expression,  although  generally  accurate,  would  not  always  be  so,  and 
therefore  should  not  appear.  The  rules  set  forth  are  to  be  applied  from  the 
moment  that  there  are  wounded  and  sick  on  board  sea-going  vessels,  it  being 
immaterial  where  the  wound  was  given  or  the  sickness  contracted,  whether  on 
land  or  at  sea.  Consequently,  if  a  vessel's  duty  is  to  carry  by  sea  the  wounded 
or  sick  of  land  forces,  this  vessel  and  these  sick  and  wounded  come  under  the 
provisions  of  our  project.  On  the  other  hand,  it  is  clear  that  if  sick  or  wounded 
sailors  are  disembarked  and  placed  in  an  ambulance  or  a  hospital,  the  Geneva 
Convention  applies  to  them  in  all  respects. 

As  this  observation  seems  to  us  to  respond  fully  to  the  remarks  made  in  the 
subcommission  on  this  point,  we  think  it  unnecessary  to  insert  any  provision  deal- 
ing especially  with  it. 


404  SECOND  COMMISSION 

The  status  to  be  given  the  wounded,  sick  and  shipwrecked  has  given  rise  to 
considerable  controversy  and  even  to  the  somewhat  confused  rules  of  the 
additional  articles.  See  Article  6,  paragraph  3 ;  Article  10,  paragraph  1 ;  Article 
11,  paragraph  2;  and  Article  13,  paragraph  8.  It  seemed  to  the  Commission  that 
the  difficulty  arose  mainly  out  of  the  fact  that  the  very  simple  general  principle 
to  be  applied  to  the  different  cases  had  been  lost  sight  of.  This  principle  is  as 
follows :  a  belligerent  has  in  his  power  hostile  combatants,  and  these  combatants 
are  his  prisoners.  It  matters  little  that  they  are  wounded,  sick,  or  shipwrecked, 
or  that  they  have  been  taken  on  board  a  vessel  of  any  particular  kind.  These 
circumstances  do  not  affect  their  legal  status.  This  is  the  governing  principle, 
and  its  application  is  not  always  consistent  with  the  articles  of  1868.  A  bel- 
ligerent's hospital  ship  takes  on  board  the  sick,  wounded,  or  shipwrecked  of  its 
own  nationality  and  carries  them  to  a  port  of  its  own  country ;  why  should  not 
these  be  as  unrestrained  as  those  who  are  picked  up  by  an  ambulance?  The 
last  paragraph  of  the  thirteenth  additional  article  says,  however,  that  the  wounded 
and  shipwrecked  taken  on  board  hospital  ships  cannot  serve  again  during  the 
war. 

If  we  suppose  that  the  same  hospital  ship,  with  sick,  wounded,  or  ship- 
wrecked of  its  own  nationality  on  board,  meets  a  cruiser  of  the  enemy,  why 
would  not  the  latter  be  justified  in  considering  as  prisoners  of  war  the  combatants 
thus  coming  into  its  power?  There  are  some  among  the  combatants,  such  as 
the  sick  and  wounded,  who  have  a  right  to  special  treatment,  and  towards  whom 
the  captor  has  certain  duties ;  they  are  none  the  less  all  prisoners  of  war.  The 
additional  articles  admit  this  to  the  extent  of  making  such  combatants  incapable 
of  further  service  in  the  war  (Article  10,  paragraph  1,  and  Article  13,  towards 
the  end).     But  this  provision  does  not  offer  a  sufficient  guaranty. 

The  cruiser  therefore  remains  free  to  act  according  to  circumstances;  it 
may  keep  the  prisoners,  or  send  them  to  a  port  of  its  own  country,  or  to  a  neutral 
port,  or,  in  case  of  need,  when  there  is  no  other  port  near,  to  one  of  the  enemy's 
ports.  It  will  also  take  the  last-mentioned  course  when  there  are  only  sick  or 
wounded  whose  condition  is  serious.  It  will  not  be  interested  in  burdening  itself 
or  its  own  country  with  the  sick  and  wounded  of  the  enemy.  It  will  therefore 
generally  be  the  case  that  hospital  ships  or  others  having  sick  and  wounded  will 
not  be  diverted  from  their  destination.  Both  humanity  and  the  interest  of  the 
belligerent  will  enjoin  this  course.  But  the  right  of  the  belligerent  cannot 
be  ignored.  The  wounded  or  sick  who  are  thus  returned  to  their  own  country 
cannot  serve  during  the  continuance  of  the  war.  It  is  unnecessary  to  add 
that  if  they  should  be  exchanged  their  status  as  prisoners  of  war  at  liberty  on 
parole  would  cease,  and  they  would  resume  their  freedom  of  action. 

Article  9 

The  shipwrecked,  wounded,  or  sick  of  one  of  the  belligerents  who  fall  into  the  power 
of  the  other,  are  prisoners  of  war.  The  captor  must  decide,  according  to  circumstances, 
whether  to  keep  them,  send  them  to  a  port  of  his  own  country,  to  a  neutral  port,  or  even 
to  an  enemy  port.  In  this  last  case,  prisoners  thus  repatriated  cannot  serve  again  while 
the  war  lasts. 

The  last  provision  remaining  to  be  spoken  of  has  no  corresponding  one  in 
the  additional  articles.  It  deals  with  the  case  of  the  shipwrecked,  wounded,  or 
sick  who  are  landed  in  a  neutral  port.     This  case  must  be  provided  for,  both 


THIRD  MEETING,  JUNE  20,  1899:  ANNEX  405 

because  it  will  naturally  happen  quite  frequently  and  may,  in  the  absence  of  a 
precise  rule,  give  rise  to  difficulties.  Of  course  a  neutral  Government  is 
[17]  not  bound  to  receive  within  its  territory  the  sick,  wounded,  or  shipwrecked. 
Can  it  do  so  even,  without  failing  in  the  duties  of  neutrality?  The 
doubt  arises  from  the  fact  that  in  certain  cases  a  belligerent  will  often  court 
danger  in  getting  rid  of  the  sick  and  wounded  who  encumber  him  and  hamper 
him  in  his  operations;  the  neutral  territory  will  thus  help  him  to  execute  his 
hostile  enterprise  better.  Nevertheless,  it  has  seemed  that  considerations  of  hu- 
manity ought  to  prevail  here.  In  most  cases  the  disembarkment  of  the  sick  and 
wounded  picked  up,  for  instance,  by  hospital  ships  or  merchantmen  would  be 
purely  an  act  of  charity,  and  if  this  were  not  done  the  suffering  of  the  sick  and 
wounded  would  be  needlessly  aggravated  by  prolonging  the  passage  so  as  to  reach 
a  port  of  their  own  nation.  It  may  happen  too  that  the  wounded  and  the  sick  thus 
landed  will  belong  to  both  belligerents.  The  neutral  State  which  has  consented 
to  the  disembarkment  is  obliged  to  take  the  necessary  measures  to  the  end  that 
his  territory  may  serve  the  victims  of  the  war  only  as  an  asylum  and  that  the 
individuals  thus  harbored  shall  not  be  able  to  take  part  in  the  hostilities  again. 
This  is  an  important  point,  especially  in  the  case  of  the  shipwrecked. 

Lastly,  it  is  clear  that  the  expenses  occasioned  by  the  presence  of  these  sick, 
wounded,  or  shipwrecked  ought  not  to  be  borne  eventually  by  the  neutral  State. 
They  should  be  refunded  by  the  State  to  which  the  individuals  belong. 

Article  10 

The  shipwrecked,  wounded,  or  sick,  who  are  landed  at  a  neutral  port,  with  the  consent 
of  the  local  authorities,  must  be  guarded  by  the  neutral  States  so  as  to  prevent  their  again 
taking  part  in  the  operations  of  the  war. 

The  expenses  of  tending  them  in  hospital  and  interning  them  shall  be  borne  by  the 
State  to  which  the  shipwrecked,  sick  or  wounded  belong. 

The  Commission  does  not  offer  any  provision  corresponding  to  additional 
Article  14,  It  was  agreed  without  debate  that  this  article  should  be  dropped. 
Doubtless  it  may  unfortunately  happen  that  the  rules  laid  down,  if  made  obliga- 
tory, will  not  always  be  obeyed,  and  that  more  or  less  serious  abuses  will  be  com- 
mitted. Such  regrettable  acts  will  entail  the  ordinary  penalties  of  the  law  of 
nations ;  they  cannot  be  prevented  by  a  special  provision  which  would  be  of  a  na- 
ture to  weaken  the  legal  and  moral  force  of  the  preceding  rules. 


Text  Submitted  to  the  Conference 

Article  1 

Military  hospital  ships,  that  is  to  say,  ships  constructed  or  assigned  by 
States  specially  and  solely  with  the  view  to  assist  the  wounded,  sick  and  ship- 
wrecked, the  names  of  which  have  been  communicated  to  the  belligerent  Powers 
at  the  commencement  or  during  the  course  of  hostilities,  and  in  any  case  before 
they  are  employed,  shall  be  respected  and  cannot  be  captured  while  hostilities 
last. 

These  ships,  moreover,  are  not  on  the  same  footing  as  men-of-war  as  regards 
their  stay  in  a  neutral  port. 


406  SECOND  COMMISSION 

Article  2 

Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  in- 
dividuals or  officially  recognized  relief  societies,  shall  likewise  be  respected  and 
exempt  from  capture,  if  the  belligerent  Power  to  which  they  belong  has  given 
them  an  official  commission  and  has  notified  their  names  to  the  hostile  Power 
at  the  commencement  of  or  during  hostilities,  and  in  any  case  before  they  are 
employed. 

These  ships  shall  be  provided  with  a  certificate  from  the  competent  authori- 
ties, declaring  that  they  had  been  under  their  control  while  fitting  out  and  on 
final  departure. 

Article  3 

Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  in- 
dividuals or  officially  recognized  societies  of  neutral  countries,  shall  be  respected 
and  exempt  from  capture,  if  the  neutral  Power  to  which  they  belong  has  given 
them  an  official  commission  and  has  notified  their  names  to  the  belligerent  Powers 
at  the  commencement  of  or  during  hostihties,  and  in  any  case  before  they  are 
employed. 

Article  4 

[18]  The  ships  mentioned  in  Articles  1,  2  and  3  shall  afford  relief  and  assistance 
to  the  wounded,  sick,  and  shipwrecked  of  the  belligerents  without  distinction 
of  nationality. 

The  Governments  undertake  not  to  use  these  ships  for  any  military  purpose. 

These  ships  must  in  nowise  hamper  the  movements  of  the  combatants. 

During  and  after  an  engagement  they  will  act  at  their  own  risk  and  peril. 

The  belligerents  will  have  the  right  to  control  and  search  them ;  they 
can  refuse  to  help  them,  order  them  off,  make  them  take  a  certain  course, 
and  put  a  commissioner  on  board;  they  can  even  detain  them,  if  important  cir- 
cumstances require  it. 

As  far  as  possible  the  belligerents  shall  enter  in  the  log  of  the  hospital 
ships  the  orders  which  they  give  them. 

Article  5 

Military  hospital  ships  shall  be  distinguished  by  being  painted  white  outside 
with  a  horizontal  band  of  green  about  a  meter  and  a  half  in  breadth. 

The  ships  mentioned  in  Articles  2  and  3  shall  be  distinguished  by  being 
painted  white  outside  with  a  horizontal  band  of  red  about  a  meter  and  a  half 
in  breadth. 

The  boats  of  the  ships  above  mentioned,  as  also  small  craft  which  may 
be  used  for  hospital  work,  shall  be  distinguished  by  similar  painting. 

All  hospital  ships  shall  make  themselves  known  by  hoisting,  with  their  na- 
tional flag,  the  white  flag  with  a  red  cross  provided  by  the  Geneva  Convention. 

Article  6 

Neutral  merchantmen,  yachts,  or  vessels,  having,  or  taking  on  board,  sick, 
wounded,  or  shipwrecked  of  the  belligerents,  cannot  be  captured  for  so  doing, 
but  they  are  liable  to  capture  for  any  violation  of  neutrality  they  may  have 
committed. 


THIRD  MEETING,  JUNE  20,  1899:  ANNEX  407 

Article  7 

The  religious,  medical,  and  hospital  staff  of  any  captured  ship  is  inviolable, 
and  its  members  cannot  be  made  prisoners  of  war.  On  leaving  the  ship  they 
take  with  them  the  objects  and  surgical  instruments  which  are  their  own  private 
property. 

This  staff  shall  continue  to  discharge  its  duties  while  necessary,  and  can 
afterwards  leave  when  the  commander  in  chief  considers  it  possible. 

The  belligerents  must  guarantee  to  the  said  staff  when  it  has  fallen  into 
their  hands  the  enjoyment  of  their  salaries  intact. 

Article  8 

Sailors  and  soldiers  on  board  when  sick  or  wounded,  to  whatever  nation 
they  belong,  shall  be  protected  and  tended  by  the  captors. 

Article  9 

The  shipwrecked,  wounded,  or  sick  of  one  of  the  belligerents  who  fall  into 
the  power  of  the  other,  are  prisoners  of  war.  The  captor  must  decide,  accord- 
ing to  circumstances,  whether  to  keep  them,  send  them  to  a  port  of  his  own 
country,  to  a  neutral  port,  or  even  to  an  enemy  port.  In  this  last  case,  prisoners 
thus  repatriated  cannot  serve  again  while  the  war  lasts. 

Article  10 

The  shipwrecked,  wounded,  or  sick,  who  are  landed  at  a  neutral  port,  with 
the  consent  of  the  local  authorities,  must,  unless  an  arrangement  is  made  to 
the  contrary  between  the  neutral  State  and  the  belligerent  States,  be  guarded 
by  the  neutral  State  so  as  to  prevent  their  again  taking  part  in  the  operations  of 
the  war. 

The  expenses  of  tending  them  in  a  hospital  and  interning  them  shall  be 
borne  by  the  State  to  which  the  shipwrecked,  sick,  or  wounded  belong. 


FOURTH    MEETING 

JULY  5,  1899 


Mr.  Martens  presiding. 

The  minutes  of  the  meeting  of  June  20  are  read. 

Captain  Mahan  expresses  a  desire  to  change  the  negative  vote  which  he 
expressed  at  the  above-mentioned  meeting,  instructions  which  he  has  received 
subsequently  from  his  Government  directing  him  to  vote  in  favor  of  the  amend- 
ment of  Mr.  Beldiman  with  regard  to  the  revision  of  the  Geneva  Convention  at 

the  initiative  of  the  Swiss  Federal  Government. 
[19]   Mr.  Beldiman  observes  that  this  modification  changes  the  result  of  the 
vote  in  regard  to  his  proposition. 

Taking  into  account  the  change  in  question,  there  would  be  fourteen  af- 
firmative votes  and  a  few  abstentions. 

However,  even  without  this  modification  there  is  reason  for  taking  the 
vote  again. 

As  a  matter  of  fact,  to  count  abstentions  as  negative  votes  could  not  be  con- 
sidered as  being  in  conformity  with  parliamentry  usage,  nor  with  the  mode  of 
procedure  observed  hitherto  in  this  Conference. 

However,  as  it  is  desirable  above  all  to  secure  unanimity,  he  does  not  insist 
either  on  the  rectification  of  the  vote  or  on  the  maintenance  of  his  amendment. 

He  makes  a  new  proposition:  to  annul  the  two  preceding  votes  and  unani- 
mously adopt  the  vccu  expressed  by  President  Asser  at  the  close  of  the  last 
meeting  of  the  first  subcommission,  couched  in  the  following  terms : 

The  Hague  Conference,  taking  into  consideration  the  preliminary  steps 
taken  by  the  Swiss  Federal  Government  for  the  revision  of  the  Geneva 
Convention,  utters  the  vceu  that  steps  may  be  shortly  taken  for  the  assembly 
of  a  special  Conference  having  for  its  object  the  revision  of  that  Convention. 

In  the  hope  of  winning  the  consent  of  all  the  members,  he  makes  also  the 
following  motion: 

In  expressing  the  vocu  with  regard  to  the  revision  of  the  Geneva  Con- 
vention, the  Second  Commission  adheres  fully  to  the  declaration  made  by  Mr. 
Asser,  President  of  the  first  subcommission,  at  the  meeting  of  June  20  and 
by  which  the  delegate  from  the  Netherlands  stated  that  all  the  States  repre- 
sented at  The  Hague  would  be  glad  to  have  the  Swiss  Federal  Council  take 
the  initiative,  in  the'  near  future,  in  convoking  a  conference  with  a  view  to 
revising  the  Geneva  Convention. 

If  this  motion  were  not  unanimously  carried,  he  would  recover  his  freedom 
of  action. 

408 


FOURTH  MEETING,  JULY  5,  1899  409 

The  only  purpose  of  the  proposition  is  to  avoid  roll  calls  and  decisions  reached 
by  a  majority  of  votes. 

The  tv^^o  propositions  concerning  the  annulment  of  the  previous  votes  and 
the  adoption  of  the  vccu  expressed  by  Mr.  Asser  are  approved. 

The  motion  of  Mr.  Beldiman  is  seconded  by  Mr.  Motono. 

His  Excellency  Mr.  White  declares  that  the  original  vote  of  the  United 
States  in  the  subcommission  was  the  result  of  a  misunderstanding. 

The  American  Government  has  the  most  earnest  desire  to  do  justice  to 
Switzerland,  which  took  the  initiative  in  this  great  humane  work  and  which  de- 
veloped the  idea  thereof. 

It  will  therefore  vote  for  the  proposition  of  the  delegate  from  Roumania. 

The  President  defines  the  purport  of  the  motion  of  Mr.  Beldiman.  It  will 
not  in  any  wise  affect  the  freedom  of  action  of  the  Governments ;  the  latter  will 
have  the  privilege  of  giving  to  the  Swiss  Government  an  answer  based  on  their 
personal  views  and  their  interests. 

His  Excellency  Sir  Julian  Pauncefote  wishes  to  state  that  it  is  therefore 
not  a  question  of  a  mandate  given  to  Switzerland. 

The  President  indorses  this  view. 

The  motion  of  Mr.  Beldiman  is  unanimously  adopted  with  this  reservation. 

Mr.  Beldiman  says  that  it  is  understood  that  it  will  be  submitted  to  the 
Conference  in  plenary  session. 

The  minutes  of  the  meeting  of  June  20  are  adopted. 

The  President  has  the  minutes  of  the  meeting  of  July  1  of  the  second  sub- 
commission  read. 

They  are  adopted  without  modification. 

The  President  declares  that  as  the  present  meeting  of  the  Commission  is  the 
last  the  minutes  thereof  will  be  communicated  in  the  form  of  proof  sheets  to 
all  the  members,  who  shall  indicate  the  rectifications  which  they  desire  to  see 
inserted  therein. 

This  mode  of  procedure  is  adopted. 

The  report  on  the  "  draft  regulations  concerning  the  laws  and  customs  of 
war  on  land,"  presented  by  Mr.  Rolin  on  behalf  of  the  second  subcommission,  is 
adopted  after  a  statement  by  the  reporter  of  some  modifications  of  form  or 
additions  by  means  of  which  he  has  been  able  to  do  justice  at  once  to  the  ob- 
servations which  have  reached  him  since  the  last  meeting  of  the  subcommission. 

The  examination  of  the  articles  of  the  draft  voted  by  the  second  subcom- 
mission at  its  second  meeting  is  now  taken  up. 

With  a  view  to  accelerating  the  progress  of  the  work  it  is  decided  on  mo- 
tion of  the  President  to  vote  chapter  by  chapter. 
[20]   Chapters  I,  II,  and  III  of  the  first  section  are  adopted  without  modification. 
The  five  chapters  of  the  second  section  are  likewise  adopted  without  modi- 
fication. 

In  regard  to  Article  25,  his  Excellency  Count  Nigra,  according  to  instruc- 
tions which  he  has  received,  proposes  to  add  the  word  ports  to  the  words  "  towns, 
etc." 

He  acknowledges  that  it  is  only  a  question  of  regulating  land  warfare; 
now,  the  bombardment  of  a  port  by  an  army  comes  within  this  domain.  More- 
over, he  thinks  that  the  time  is  opportune  to  decide  whether  the  provisions  of 
Article  25  should  not  likewise  govern  bombardments  made  by  naval  forces. 


410  SECOND  COMMISSION 

Mr.  Rolin  sees  no  objection  to  the  word  "  ports  "  being  added,  provided  it  is 
a  question  only  of  a  bombardment  by  land  forces ;  but  the  addition  appears  super- 
fluous to  him,  for  a  port  always  comes  within  the  category  of  "  towns,  villages,, 
dwellings  or  buildings  "  and  the  addition  in  question  might  cause  ambiguity. 

His  Excellency  Count  Nigra  takes  note  of  this  declaration  and  asks  that  it  be 
inserted  in  the  minutes. 

As  regards  the  second  question  raised  by  his  Excellency  Count  Nigra,  Mr. 
Rolin  observes  that,  in  the  opinion  of  the  subcommission,  it  comes  within  the 
jurisdiction  of  the  full  Commission;  the  latter  should  therefore  adopt  a  special 
provision. 

Up  to  the  present  no  proposition  of  this  kind  has  been  made. 
His  Excellency  Count  Nigra  declares  that  he  embraces  the  opportunity  to 
formulate  one. 

He  proposes  that  Article  25  be  likewise  applicable  to  bombardments  directed 
toward  land  by  naval  forces. 

Mr.  Rolin  sees  an  objection  to  the  motion  of  Count  Nigra,  A  naval  force 
may  be  led  to  bombard  towns  or  ports  even  if  they  are  undefended,  particularly 
for  the  purpose  of  compelling  them  to  furnish  it  provisions,  coal  or  other  sup- 
plies which  it  has  demanded  of  them.  A  land  force  would  have  neither  ground 
nor  excuse  to  do  so.  But  a  naval  force  has  no  other  means  of  exercising  its 
authority,  whereas  a  land  force  has  the  resource  of  occupation,  and  bombards  only 
for  the  purpose  of  enforcing  surrender. 

The  reasons  are  therefore  not  the  same  for  the  two  kinds  of  bombardment. 
We  might  confine  ourselves  to  stating  that  bombardment  by  fleet  is  not  per- 
mitted for  the  sole  purpose  of  terrorizing  the  inhabitants  or  uselessly  destroying 
property. 

His  Excellency  Count  Nigra  simply  asks  that  the  Commission  pass  on  the 
following  question : 

Can  the  provisions  of  Article  25  likewise  be  applied  to  bombardments  made 
by  naval  forces? 

General  den  Beer  Poortugael  will  not  admit  that  identical  rules  cannot 
govern  both  land  and  naval  warfare.  He  refers  to  the  Annuaire  of  the  Institute 
of  International  Law  for  the  Venice  session,  where  it  was  decided  that  the  rules 
of  land  warfare  should  be  applicable  to  maritime  wars. 

In  his  opinion  the  question  is  one  of  capital  importance.  Nevertheless,  he 
does  not  consider  the  time  opportune  to  discuss  it ;  he  simply  desires  to  call  it 
to  the  attention  of  the  Commission  in  the  hope  that  it  will  be  examined  more 
closely  at  a  subsequent  conference. 

Mr.  Rolin  thinks  that  he  disagrees  with  the  previous  speaker  only  on  a 
question  of  words,  for  the  resolution  of  the  Institute  of  International  Law  men- 
tioned by  him,  after  stating  that  the  same  rules  are  applicable,  points  out  the 
exceptions  to  said  rule. 

Mr.  Beldiman  indorses  the  conclusions  of  his  Excellency  Count  Nigra  and 
hopes  that  the  Commission  will  enter  into  explanations  on  the  question. 

The  President  recalls  the  fact  that  the  drafting  committee,  although  having 
no  instructions  to  deal  with  this  matter,  has  exchanged  some  views  on  the  sub- 
ject. 

In  the  unanimous  opinion  of  its  members  the  question  of  the  bombardment 
of  ports  is  one  of  the  most  complex. 


FOURTH  MEETING,  JULY  5,  1899  411 

He  personally  reminded  the  committee  of  the  deliberations  of  the  Venice 
session. 

Upon  examining  the  rules  which  were  formulated  there,  it  will  be  seen 
that  they  are  very  complicated. 

After  labors  which  lasted  several  years,  the  Institute  was  able  to  reach  only 
a  compromise,  because  the  condition  of  towns  in  the  interior  of  countries  is  dif- 
ferent from  the  condition  of  those  situated  on  the  coast. 

The  former  may  be  bombarded  only  for  the  purpose  of  compelling  them 
to  surrender,  while  the  latter  may  also  be  bombarded  in  order  to  compel  them 
to  furnish  provisions  to  the  naval  forces  threatening  them. 

And  even  these  rules  give  rise  to  misunderstandings  and  ambiguities. 
Along  this  line  of  ideas,  the  President  proposes  to  leave  intact  the  text 
[21]   of  Article  25,  and  to  offer  a  resolution  recommending  that  this  subject  be 
examined  by  a  conference  to  be  held  later.     This  will  be  the  only  way  of 
getting  out  of  this  complex  question. 

His  Excellency  Count  Nigra  and  Mr.  Beldiman  agree  with  this  view. 

His  Excellency  Sir  Julian  Pauncefote  cannot  join  in  the  expression  of 
the  i-ocu,  for,  as  was  declared  previously  by  Sir  John  Ardagh,  the  British  Govern- 
ment cannot  consent  to  accede  to  the  Brussels  articles  unless  naval  questions  are 
left  out  of  the  deliberations.  He  does  not  wish  to  broach  the  fundamental  sub- 
stance of  the  question,  but  he  declares  that  for  the  reason  indicated,  it  is  im- 
possible for  him  to  endorse  the  proposition  of  the  President. 

The  President  observes  that  the  z-ocu  in  question  is  but  the  expression  of  a 
desire  which  involves  no  pledge. 

His  Excellency  Sir  Julian  Pauncefote  abstains  and  asks  that  note  be  taken 
of  his  abstention  in  the  minutes. 

The  proposition  of  the  President  is  adopted  unanimously,  except  that  the 
delegate  from  Great  Britain  abstains. 

As  to  Article  33,  I\Ir.  Rolin  remarks  that  the  drafting  committee  has  modi- 
fied the  second  paragraph  of  the  text  adopted  on  the  second  reading  by  changing 
"  in  order  to  prevent  "  into  "  to  prevent."     This  modification  is  approved. 

Section  III  is  adopted. 

Article  46  gives  rise  to  the  following  discussion : 

The  President  calls  attention  to  the  letter  which  the  United  States  dele- 
gation addressed  to  the  President  of  the  Conference  in  regard  to  the  inviolability 
of  private  property  at  sea  in  time  of  war. 

He  is  happy  to  state  that  as  early  as  1823  Russia  expressed  her  sympathy 
for  this  idea. 

It  is  entitled  to  the  benevolent  interest  of  everybody ;  but  will  it  be  possible 
to  discuss  this  important  question  here?  If  this  inviolability  is  admitted,  mari- 
time nations  will  have  to  change  radically  their  plans  and  projects.  The  ques- 
tion is  so  complex  that  it  will  be  very  difficult  under  present  circumstances  to 
find  a  solution  acceptable  to  all.  Now,  a  decision  would  be  of  no  value  unless 
unanimously  adopted. 

He  therefore  proposes  to  refer  the  examination  of  this  question  also  to  a 
subsequent  conference  better  prepared  to  solve  it  and  to  work  out  a  project 
which  might  enlist  the  votes  of  all. 

If  the  Commission  adopts  this  proposition,  it  will  have  shown  evidence  of 


412  SECOND  COMMISSION 

prudence  while  at  the  same  time  doing  homage  to  the  generous  initiative  of  the 
United  States. 

His  Excellency  Sir  Julian  Pauncefote  proposes  to  put  to  a  vote  the  ques- 
tion whether  this  matter  comes  within  the  sphere  of  the  work  of  the  Conference. 

His  Government  is  of  the  opinion  that  it  does  not. 

According  to  his  Excellency  Mr.  White,  it  appeared  to  the  United  States 
delegation  that  the  Conference  is  just  as  competent  to  examine  this  question  as 
many  others  which  have  been  solved  here. 

He  would  keenly  regret  to  see  it  eliminated  so  radically.  He  agrees  with  the 
President  that  the  time  is  not  favorable  to  discuss  this  subject  although  it  in- 
terests all  the  Powers  assembled  here. 

The  best  solution,  in  his  opinion,  would  be  to  submit  the  question  to  the 
Conference  assembled  in  plenary  session,  which  will  decide  whether  it  is  proper 
to  discuss  it  now  or  to  entrust  its  examination  to  a  subsequent  conference. 

And,  if  it  is  not  wished  to  go  any  further,  even  this  latter  solution  will  be 
supported  by  the  United  States  delegation. 

The  latter  does  not  wish  to  cause  any  discord  which  would  be  detrimental 
to  the  results  attained  on  other  very  important  questions ;  it  wishes  merely  to  see 
this  proposition,  which  was  made  in  good  faith,  submitted  to  the  Conference  in 
plenary  session.  There,  it  will  not  oppose  referring  the  question  to  a  subse- 
quent conference. 

Mr.  Rahusen,  without  wishing  to  enter  into  the  merits  of  the  case,  will 
make  two  observations : 

1.  He  endorses  the  ideas  of  his  Excellency  Mr.  White  as  regards  the 
question  of  competency. 

The  Conference  takes  up  the  question  of  private  property  on  land.     Why 
might  it  not  hkewise  examine  the  question  of  private  property  at  sea? 
And,  moreover,  for  what  reason  should  they  be  treated  differently? 

2.  He  suggests  the  idea  of  having  the  Governments  favoring  the  idea  of 
inviolability  bind  themselves  together  by  special  treaties. 

A  precedent  has  already  been  created  by  some  Italian  treaties  of  commerce. 
The  President  observes  that  the  second  Commission  has  received  instruc- 
[22]  tions  from  the  subcommission  to  deal  with  this  question ;  these  instruc- 
tions were  backed  by  Mr.  Crozier.  It  must  therefore  pass  on  the  question 
whether  it  wishes  to  have  the  examination  of  the  subject  referred  to  a  subse- 
quent conference.  The  Conference  may  or  may  not  approve  the  decision  which 
has  been  reached  by  the  Commission.  But  at  all  events  the  latter  constitutes  an 
intermediate  jurisdiction  between  the  subcommission  and  the  Conference,  and 
as  such  it  ought  to  make  its  opinion  known. 

His  Excellency  Sir  Juli.\n  Pauncefote  has  nevertheless  raised  the  impor- 
tant previous  question  of  competency.     This  question  will  have  to  be  decided. 

Mr.  Scheine  observes  that  the  Conference  has  thus  far  dealt  only  with  the 
laws  of  land  warfare.  The  instructions  which  he  has  received  from  his  Govern- 
ment in  no  wise  relate  to  the  laws  and  customs  of  maritime  war. 

He  concludes  from  this  that  the  Russian  Government  has  not  considered 
this  subject  as  coming  within  the  program  provided  by  the  circular  of  Count 
MouRAViEFF  and  he  will  refrain  from  taking  part  in  the  discussion  of  this  ques- 
tion. 

His  Excellency  -Mr.  White  insists  that  this  question,  which  is  doubtful  and 


FOURTH  MEETING,  JULY  5,  1899  413 

of  such  great  importance,  be  submitted  to  the  Conference  in  plenary  session  in 
order  that  it  may  decide  it. 

The  President  proposes  that  the  Commission  utter  a  vcru  that  the  ques- 
tion be  referred  to  the  examination  of  a  subsequent  conference.  If  this  vcru  is 
adopted,  it  will  be  submitted  to  the  approval  of  the  Conference. 

An  exchange  of  views  takes  place  between  the  President,  his  Excellency 
Mr.  White,  Mr.  Bourgeois,  his  Excellency  Sir  Julian  Pauncefote,  and  Messrs. 
Rolin  and  Miyatovitch. 

The  recommendation  proposed  by  the  President  is  adopted,  except  that 
France,  Great  Britain  and  Russia  abstain. 

Mr.  Bourgeois  abstains  because  the  uttering  of  a  voeu  implies  competency 
in  his  opinion;  but,  the  question  whether  the  Commission  is  competent  or  not 
has  not  been  decided. 

Section  IV  is  adopted. 

The  President  recalls  the  fact  that  a  vcru  regarding  this  section  was  pro- 
posed by  his  Excellency  Mr.  Eyschen  and  adopted  by  the  second  subcommission : 
to  entrust  to  the  examination  of  a  subsequent  conference  the  determination  of 
the  rights  and  duties  of  neutrals. 

The  Commission  likewise  adopted  this  voeu,  which  will  be  submitted  for  the 
approval  of  the  Conference. 

The  sixty  articles  proposed  by  the  subcommission  having  therefore  been 
adopted,  the  President  calls  the  attention  of  the  assembly  to  the  legal  character 
which  ought  to  be  given  to  them  as  a  whole.  The  drafting  committee  entrusted 
with  the  consideration  of  this  question,  agreed,  after  a  conscientious  discussion, 
on  the  form  of  the  act  which  is  to  contain  them.  It  was  of  opinion  that  this 
work  ought  to  be  called  a  convention  rather  than  a  declaration. 

The  title  of  the  act  will  be :  "  Convention  concerning  the  laws  and  customs 
of  war  on  land." 

The  purpose  of  this  Convention  will  be  to  adopt  a  uniform  basis  for  the  in- 
structions which  the  respective  Governments  are  to  give  to  their  land  forces  in 
case  of  war. 

The  principle  is  expressed  in  the  preamble,  which  was  unanimously  approved 
by  the  drafting  committee. 

The  committee  was  unanimous  in  its  opinion  on  another  point:  it  is  de- 
sirable that  the  different  acts  of  the  Conference  be  drafted  as  far  as  possible  in 
the  same  form. 

The  text  which  has  been  prepared  therefore  constitutes  but  a  preparatory 
work  which  will  be  submitted  to  the  Drafting  Committee  of  the  Final  Act;  the 
latter  may  modify  it  for  the  purpose  of  attaining  the  desired  uniformity. 

Mr.  Rolin  reads  the  preamble  proposed  for  the  draft  convention  and  remarks 
that  the  largest  part  thereof  is  borrowed  from  the  declaration  made  by  Mr. 
Martens  and  adopted  by  the  second  subcommission  at  its  meeting  of  June  20. 

On  motion  of  Baron  Bildt  and  his  Excellency  Count  Nigra,  it  is  decided 
to  substitute  the  word  more  for  entirely  in  the  first  line  on  page  2. 

Chevalier  Descamps  declares  that  he  has  not  yet  had  time  to  ask  the  opinion 
of  the  first  Belgian  delegate  regarding  the  text  of  the  preamble. 

The  preamble  of  the  draft  convention  is  adopted  under  reservation  of  sub- 
sequent amendments  and  referred  to  the  Drafting  Committee  of  the  Final  Act. 

At  the  request  of  Captain  Crozier,  the  President  states  that  the  adoption 


414  SECOND  COMMISSION 

of  this  preamble  by  the  Commission  does  not  yet  obligate  the  respective  Govern- 
ments. 

Count  de  Macedo  renews  the  reservations  which  he  made  in  regard  to  the 
ten  articles  adopted  in  the  first  subcommission. 

He  hastens,  however,  to  add  that  he  recognizes  the  importance  of  the  work 

with  which  the  Commission  is  engaged  at  this  moment. 

[23]   In  regard  to  the  final  provisions,  the  President  remarks  that  he  deems  it 

useless  to  deal  with  them  here.     The  Drafting  Committee  of  the  Final  Act 

which  will  also  deal  with  other  acts  of  the  Conference,  will  work  out  the  final 

wording  proper  to  be  given  these  provisions. 

Jonkheer  van  Karnebeek  does  not  share  this  opinion.  The  instructions 
given  the  Drafting  Committee  of  the  Final  Act  relate  only  to  the  form  and  not  to 
the  contents.  Now,  it  is  a  question  here  of  the  substance  of  the  Convention.  In 
fact,  the  final  provisions  mention  the  signatures  and  adhesions  of  the  Powers 
represented  at  the  Conference,  without  providing  for  the  case  of  adhesion  of 
a  Power  which  had  not  participated  therein.  It  is  nevertheless  evident  that  this 
is  a  fundamental  question.  The  Convention  would  not  be  complete  in  content 
without  mentioning  this  matter.  It  is  necessary  therefore  to  know  whether 
the  Powers  not  represented  at  the  Hague  Conference  will  be  permitted  to  accede 
to  the  Convention. 

In  the  opinion  of  the  President  there  is  no  doubt  as  to  the  privilege  of 
the  nations  not  represented  at  the  Conference  to  accede,  but  this  accession  would 
constitute  but  a  question  of  form,  so  that  it  evidently  devolves  upon  the  Committee 
on  the  Final  Act  to  find  a  general  form  of  wording  which  shall  be  submitted  to 
the  approval  of  the  Conference  in  plenary  session. 

Jonkheer  van  Karnebeek  asks  why  these  final  provisions  were  submitted  to 
the  Commission  if  the  latter  is  not  the  authority  to  pass  upon  them.  He  states 
furthermore  that  they  are  incomplete  on  one  very  important  point  and  he  desires 
to  have  this  deficiency  supplied. 

Colonel  Gross  von  Schwarzhoff  thinks  that  as  a  matter  of  fact  numbers 
1  and  2  of  the  final  provisions  relate  rather  to  questions  of  substance  than  of 
form;  he  therefore  asks  that  they  be  discussed  in  Commission. 

These  two  numbers  are  read  and  adopted  subject  to  final  wording. 

Jonkheer  van  Karnebeek  defines  the  scope  of  his  proposition,  which  goes 
further  than  mere  technical  form ;  it  is  a  fundamental  question  and  he  wishes 
to  know  whether  this  Convention  will  be  open  or  not  to  those  who  may  wish 
to  accede  thereto  later  on. 

Mr.  Bourgeois  says  that  he  thought  of  the  same  thing.  He  is  of  the 
same  opinion  as  Messrs.  van  Karnebeek  and  Gross  von  Schwarzhoff.  But 
because  of  the  very  importance  of  the  provision  in  question  he  prefers  to  en- 
trust its  wording  to  the  Committee  on  the  Final  Act,  which  will  be  able  to  take 
into  account  the  general  provisions  adopted  in  regard  to  the  other  matters 
studied  by  the  Conference  and  will  be  able  to  reach  a  decision  in  conformity 
with  them. 

Jonkheer  van  Karnebeek  says  there  is  no  reason  why  the  question  of  acces- 
sion should  be  decided  in  the  same  manner  in  the  case  of  every  particular  con- 
vention adopted  by  the  Conference. 

Baron  Bildt  sees  no  objection  to  the  Second  Commission's  expressing  its 


FOURTH  MEETING,  JULY  5,  1899:  ANNEX  415 

opinion  regarding  the  substance  of  the  final  provisions,  in  order  to  furnish  a 
hint  to  the  Committee  on  the  Final  Act. 

Jonkheer  van  Karnebeek  does  not  oppose  this  view. 

A  discussion  takes  place  between  the  President,  Mr.  Rolin,  and  Jonkheer 
van  Karnebeek. 

The  latter  proposes  to  add  a  sixth  article  worded  as  follows : 

The  Powers  which  did  not  take  part  in  the  Hague  Peace  Conference  are 
allowed  to  adhere  to  the  present  Convention. 

For  this  purpose  they  must  notify  their  adhesion  in  writing  to  the 
Netherland  Government,  which  shall  make  it  known  to  all  the  other  con- 
tracting Governments. 

After  an  exchange  of  views  between  the  President,  and  Messrs.  van  Karne- 
beek, Rolin,  Descamps,  and  Motono,  the  proposition  of  Mr.  van  Karnebeek, 
seconded  by  Mr.  Descamps,  is  unanimously  adopted,  save  the  abstention  of  Spain 
and  France,  in  the  sense  of  an  indication  to  be  given  to  the  Committee  on  the 
Final  Act. 

Articles  3,  4,  and  5  of  the  final  provisions  are  likewise  adopted  in  the  same 
sense  and  with  the  same  abstentions. 

The  meeting  adjourns. 


Annex  to  the  Minutes  of  the  Meeting  of  July  5 
[24] 

REPORT  PRESENTED  BY  MR.  ROLIN 

To  the  second  subcommission  was  assigned  for  study  the  subject,  "  Re- 
vision of  the  Declaration  concerning  the  laws  and  customs  of  war  elaborated 
in  1874  by  the  Conference  of  Brussels  but  not  ratified  up  to  the  present  date." 
This  is  the  seventh  of  the  subjects  for  discussion  enumerated  in  the  circular  of 
his  Excellency  Count  Mouravieff,  dated  December  30,  1898  (old  style). 

It  is  proper  at  the  outset  to  define  more  exactly  this  subject  by  recalling 
that  it  is  very  clearly  seen  from  the  entire  record  of  the  Conference  of  Brussels 
that  that  Conference  was  concerned  with  the  laws  and  customs  of  war  on  land 
only.  Consequently,  our  subcommission  has  been  constantly  governed  by  the 
idea  that  its  own  competence  was  limited  to  a  similar  extent.  It  was  for  this 
reason  that  the  subcommission  in  its  meeting  of  June  first  merely  placed  on  record 
the  proposition  of  Captain  Crozier,  a  delegate  of  the  United  States  of  America,, 
looking  to  the  extension  of  the  rules  with  respect  to  immunity  of  private  property 
on  land  over  like  property  at  sea.  For  the  same  reason  the  subcommission  also 
preferred  to  leave  to  the  Commission  the  solution  of  the  particular  question 
whether  the  rules  regarding  bombardments  are  to  be  applied  in  cases  where  ships 
at  sea  direct  their  fire  towards  points  on  the  coast. 

The  first  care  of  the  subcommission  was  to  determine  the  method  of  its 
deliberations.  For  the  basis  of  its  discussion  the  text  of  the  articles  of  the 
Declaration  of  the  Brussels  Conference  of  1874  was  taken,  but  in  a  somewhat  dif- 
ferent order.  The  order  of  the  various  questions  was  immediately  settled  as 
follows  in  the  meeting  of  May  25 : 


416  SECOND  COMMISSION 

1.  "  Prisoners  of  war"  (Articles  23  to  34). 
'     2.  "  Capitulations  "  and  "  Armistices  "  (Articles  46  to  52). 

3.  "  Parlementaires  "  (Articles  43  to  44). 

4.  "  Military  power  with  respect  to  private  individuals "  and  "  Con- 
tributions and  requisitions"  (Articles  36  to  42). 

5.  Articles  35  and  56  relating  to  the  Geneva  Convention. 

6.  "Spies"  (Articles  19  to  22). 

7.  "  Means  of  injuring  the  enemy  "  and  "  Sieges  and  bombardments  " 
(Articles  12  to  18). 

8.  **  Internment  of  belligerents  and  care   of   the   wounded   in  neutral 
countries"  (Articles  53  to  55). 

9.  "  Military  authority  over  hostile  territory  "  (Articles  1  to  8). 

10.  "  Those  who  are  to  be  recognized  as  belligerents ;  combatants  and 
non-combatants  "  (Articles  9  to  11). 

This  order  of  discussion,  intended  to  reserve  the  most  delicate  questions  for 
the  end,  was  adhered  to  by  the  subcommission  on  the  first  reading,  except  that 
after  deliberating  on  the  text  of  Articles  36  to  39  of  the  Brussels  draft  concerning 
the  military  pozver  with  respect  to  private  individuals,  the  subcommission  passed 
at  once  to  the  next  numbered  subject,  the  fifth,  reserving  Articles  40  to  42  on 
■contributions  and  requisitions  for  examination  at  the  same  time  with  the  chapter 
on  military  authority  over  hostile  territory  (No.  9  above  and  Articles  1  to  8). 

Afterwards,  however,  on  the  advice  of  the  drafting  committee  appointed 
in  the  meeting  of  June  12,^  the  subcommission  adopted  a  draft  in  which  the 
articles  are  arranged  in  four  sections,  the  first  two  sections  being  divided  into 
chapters  and  the  whole  arranged  in  a  new  order  that  seemed  more  methodical. 
This  draft  is  the  one  submitted  to  the  Second  Commission,  and  here  annexed 
under  the  title,  "  Draft  of  a  Declaration  respecting  the  laws  and  customs 
[25]  of  war  on  land."  In  order  to  establish  constant  correlation  between  that 
text  and  the  present  report,  the  report  is  divided  into  sections  and  chapters 
corresponding  to  those  of  the  draft  declaration. 

Before  passing  to  the  detailed  examination  of  the  draft  now  submitted,  the 
Commission's  attention  should  be  called  to  several  communications,  more  or  less 
general  in  their  bearing,  that  have  been  made  to  the  subcommission  in  the  course 
of  its  discussions. 

At  the  beginning  of  the  meeting  held  on  June  10,  General  Sir  John  Ardagh, 
technical  delegate  of  the  British  Government,  read  a  statement  to  the  effect  that 
in  his  personal  opinion,  which  could  not  commit  his  Government,  it  would  be  a 
mistake  to  ask  "that  the  revision  of  the  Declaration  of  Brussels  should  result 
in  an  international  Convention." 

Without  seeking  (said  Sir  John  Ardagh)  to  know  the  motives  to  which 
may  be  attributed  the  non-adoption  of  the  Brussels  Declaration,  it  is  permis- 
sible to  suppose  that  the  same  difficulties  may  arise  at  the  conclusion  of  our 
labors  at  The  Hague. 

In  order  to  brush  them  aside  and  to  escape  the  unfruitful  results  of  the 
Brussels  Conference  ...  we  would  better  accept  the  Declaration  only  as  a 

1  This  drafting  committee  was  formed  of  Messrs.  Beldiman,  Colonel  a  Court,  Colonel 

-GiLiNSKY,  Colonel  Gross  von  Schwarzhoff,  Lammasch,  Renault,  General  Zuccari,  and 

RoLiN,  the  latter  in  the  capacity  of  reporter.     Except  on  a  special  occasion  the  committee 

was  presided  over  by  Mr.  Martens,  president  of  the  Commission  and  of  the  subcommission. 

As  Mr.  Renault  was  not  able  to  be  present  at  the  last  meetings,  his  place  was  taken  by 

'General  Mounier. 


FOURTH  MEETING.  JULY  5,  1899:  ANNEX  417 

general  basis  for  instructions  to  our  troops  on  the  laws  and  customs  of  war, 
.  without  any  pledge  to  accept  all  the  articles  as  voted  by  the  majority. 

According  to  the  opinion  of  Sir  John  Ardagh  all  Governments  would  thus, 
even  though  adhering  to  the  Declaration,  retain  "  full  liberty  to  accept  or  modify 
the  articles  "of  the  Declaration. 

This  communication  of  the  technical  delegate  of  Great  Britain  led  Mr. 
Martens  to  add  some  information  regarding  the  view  which  the  Imperial  Govern- 
ment of  Russia  takes  on  the  question. 

The  object  of  the  Imperial  Government  (said  Mr.  Martens)  has  stead- 
ily been  the  same,  namely,  to  see  that  the  Declaration  of  Brussels,  revised  in 
so  far  as  this  Conference  may  deem  it  necessary,  shall  stand  as  a  solid  basis 
for  the  instructions  in  case  of  war  which  the  Governments  shall  issue  to 
their  armies  on  land.  Without  doubt,  to  the  end  that  this  basis  may  be  firmly 
established,  it  is  necessary  to  have  a  treaty  engagement  similar  to  that  of  the 
Declaration  of  St.  Petersburg  in  1868.  It  would  be  necessary  that  the  signa- 
tory and  acceding  Powers  should  declare  in  a  solemn  article  that  they  have 
reached  an  understanding  as  to  uniform  rules,  to  be  carried  over  into  such 
instructions.  This  is  the  only  way  of  obtaining  an  obligation  binding  on 
the  signatory  Powers.  It  is  well  understood  that  the  Declaration  of  Brussels 
will  have  no  binding  force  except  for  the  contracting  or  acceding  States. 

From  this  last  sentence  it  is  seen  that  according  to  the  views  of  the  Russian 
Government  there  could  be  no  other  course  than  to  conclude  a  convention  pro- 
viding that  the  adopted  rules  should  not  be  obligatory  as  such  except  upon  the  ad- 
hering States.  The  rules  would  even  cease  to  be  applicable  in  a  war  between 
adhering  States  if  one  of  them  should  accept  an  ally  who  had  not  adhered  to 
the  Convention. 

The  delegate  of  Russia  enforced  this  view  by  comparing  the  work  to  be 
done  with  the  formation  of  a  "  mutual  insurance  association  against  the  abuse 
of  force  in  time  of  war,"  an  association  which  States  should  be  free  to  enter  or 
not,  but  which  must  have  its  own  by-laws  obligatory  upon  the  members  among 
themselves. 

In  replying  to  another  objection  that  was  made  and  to  which  we  shall  re- 
vert later,  Mr.  Martens  added  that  by  agreeing  to  establish  a  "  mutual  insurance 
association  against  the  abuse  of  force  in  time  of  war  "  for  the  purpose  of  pro- 
tecting the  interests  of  populations  against  the  greatest  of  disasters,  we  by  no 
means  sanction  these  disasters,  we  merely  recognize  their  existence;  just  as 
companies  that  insure  against  fire,  hail  or  other  calamities,  merely  state  existing 
dangers. 

The  last  part  of  Mr.  Martens'  speech  was  in  answer  to  a  fundamental  objec- 
tion advanced  by  his  Excellency  Mr.  Beernaert,  the  first  delegate  of  Belgium, 
in  an  address  delivered  in  the  meeting  of  June  6. 

It  is  correct  to  say  that  the  address  of  Mr.  Beernaert  was  especially  devoted 
to  a  consideration  of  Chapters  I,  II,  and  IX  of  the  Declaration  of  Brussels  relative 
to  the  occupation  of  hostile  territory,  the  definition  of  belligerents  and  the  pro- 
visions regarding  requisitions  in  kind  or  of  money.  Mr.  Beernaert,  apropos  of 
certain  clauses  in  these  chapters,  put  the  question  whether  it  is  wise  "  in  ad- 
vance of  war  and  for  the  case  of  war,  expressly  to  legalize  rights  of  a  victor  over 
the  vanquished,  and  thus  organize  a  regime  of  defeat."     He  thought  it  best  to 


418  SECOND  COMMISSION 

adopt  no  provision  except  such  as  would  admit  the  fact  without  recognizing 
a  right  in  the  victor,  and  would  carry  a  pledge  on  the  part  of  the  latter  to  be 

moderate. 
[26]  As  a  matter  of  fact,  these  remarks  of  the  first  delegate  of  Belgium  had  a 
very  general  bearing  for  they  are  more  or  less  applicable  to  every  part  of  the 
Declaration  concerning  the  laws  and  customs  of  war.  Mr.  Martens  in  reply 
energetically  insisted  upon  the  necessity  of  not  abandoning  the  vital  interests 
of  peaceable  and  unarmed  populations  "  to  the  hazards  of  warfare  and  interna- 
tional law." 

The  question  thus  raised  was  really  whether  the  fear  of  appearing  by  an  in- 
ternational regulation  to  legalize  as  a  right  the  actual  power  exercised  through 
force  of  arms  should  be  a  good  reason  for  abandoning  the  invaluable  advantage 
in  a  limitation  of  this  power.  Besides,  no  member  of  the  subcommission  had  any 
idea  that  the  legal  authority  in  an  invaded  country  should  in  advance  give  any- 
thing like  sanction  to  force  employed  by  an  invading  and  occupying  army.  On 
the  contrary,  the  adoption  of  precise  rules  tending  to  limit  the  exercise  of  this 
power  appeared  to  be  an  obvious  necessity  in  the  real  interests  of  all  peoples 
whom  the  fortune  of  war  might  in  turn  betray. 

The  subcommission  took  into  account  the  views  of  Mr.  Beernaert  by 
adopting  as  its  own  a  declaration  which  Mr.  Martens  read  in  the  meeting  of 
June  20.  The  complete  text  of  this  declaration  will  be  found  below  in  the 
commentary  upon  Articles  1  and  2  (formerly  9  and  10)  to  which  they  particu- 
larly relate.  It  should  be  remembered  that,  as  the  subcommission  desired,  this 
document  is  to  be  given  a  place  in  the  records  of  the  Conference.  As  a  conse- 
quence, the  draft  is  not  to  be  considered  as  intended  to  regulate  all  cases  oc- 
curring in  practice ;  the  law  of  nations  still  has  its  field.  Furthermore,  it  has 
been  formally  said  that  none  of  the  articles  of  the  draft  can  be  considered  as 
entailing  on  the  part  of  adhering  States  the  recognition  of  any  right  whatever 
in  derogation  of  the  sovereign  rights  of  each  of  them,  and  that  adhesion  to 
the  regulations  will  simply  imply  for  each  State  the  acceptance  of  a  set  of  legal 
rules  restricting  the  exercise  of  the  power  that  it  may  through  the  fortune  of 
war  wield  over  foreign  territory  or  subjects. 

There  still  remains  to  be  brought  to  the  notice  of  the  Commission  a  com- 
munication of  a  general  nature.  At  the  meeting  of  June  3  his  Excellency  Mr. 
Eyschen,  the  delegate  of  the  Grand  Duchy  of  Luxemburg,  called  the  attention 
of  the  subcommission  to  the  importance  of  a  determination  of  the  rights  and 
duties  of  neutral  States.  The  subcommission  was  of  the  opinion  that  it  should 
confine  itself  to  examining  the  questions  falling  within  the  terms  of  the  Declara- 
tion of  Brussels,  but  it  recommended  the  passage  of  the  resolution  expressing 
the  hope  "  that  the  question  regulating  the  rights  and  duties  of  neutral  States 
may  be  inserted  in  the  program  of  a  conference  in  the  near  future." 

We  now  pass  to  an  examination  of  the  text  of  the  draft  Declaration,  which 
is  divided  into  four  sections. 


FOURTH  MEETING,  JULY  5,  1899 :  ANNEX  419 

SECTION  I.—  Belligerents 
Chapter  I. —  The  qualifications  of  belligerents 
(Articles  1  to  3) 

The  two  first  articles  of  this  chapter  (Articles  1  and  2)  were  voted  unani- 
mously and  are  word  for  word  the  same  as  Articles  9  and  10  of  the  Brussels 
Declaration,  with  the  exception  of  a  purely  formal  addition  to  the  final  para- 
graph of  the  first  article  made  on  the  second  reading,  in  order  to  include 
volunteer  corps  as  well  as  militia  within  the  term  army. 

When  these  articles  were  first  submitted  to  discussion,  Mr.  Martens  read 
the  declaration  already  spoken  of  and  the  subcommission  immediately  adopted  it 
for  submission  to  the  Conference.     Its  text  follows : 

The  Conference  is  unanimous  in  thinking  that  it  is  extremely  desirable 
that  the  usages  of  war  should  be  defined  and  regulated.  In  this  spirit  it  has 
adopted  a  great  number  of  provisions  which  have  for  their  object  the  deter- 
mination of  the  rights  and  of  the  duties  of  belligerents  and  populations  and 
for  their  end  a  softening  of  the  evils  of  war  so  far  as  military  necessities 
permit.  It  has  not,  however,  been  possible  to  agree  forthwith  on  provisions 
embracing  all  the  cases  which  occur  in  practice. 

On  the  other  hand,  it  could  not  be  intended  by  the  Conference  that  the 
cases  not  provided  for  should,  for  want  of  written  provision,  be  left  to  the 
arbitrary  judgment  of  the  military  commanders. 
[27]  Until  a  perfectly  complete  code  of  the  laws  of  war  is  issued,  the  Con- 
ference thinks  it  right  to  declare  that  in  cases  not  included  in  the  present 
arrangement,  populations  and  belligerents  remain  under  the  protection  and 
empire  of  the  principles  of  international  law,  as  they  result  from  the  usages 
established  between  civilized  nations,  from  the  laws  of  humanity,  and  the  re- 
quirements of  the  public  conscience. 

It  is  in  this  sense  especially  that  Articles  9  and  10  adopted  by  the  Con- 
ference must  be  understood. 

The  senior  delegate  from  Belgium,  Mr.  Beernaert,  who  had  previously 
objected  to  the  adoption  of  Articles  9  and  10  (1  and  2  of  the  new  draft),  im- 
mediately announced  that  he  could  because  of  this  declaration  vote  for  them. 

Unanimity  was  then  obtained  on  those  very  important  and  delicate  pro- 
visions relating  to  the  fixing  of  the  qualifications  of  belligerents. 

The  third  and  last  article  of  this  chapter,  which  is  identical  except  as  to 
details  of  form  with  Article  11  of  the  Brussels  draft,  expressly  says  that  non- 
combatants  forming  part  of  an  army  should  also  be  named  belligerents,  and 
that  both  combatants  and  non-combatants,  that  is  to  say  all  belligerents,  have  a 
right  in  case  of  capture  by  the  enemy  to  be  treated  as  prisoners  of  war. 

There  was  some  thought  of  transferring  this  article,  or  at  least  its  last 
sentence,  to  the  chapter  on  prisoners  of  war.  But  in  the  end  it  appeared  useful, 
after  having  defined  the  conditions  of  belligerency,  to  state  at  once  this  essential 
right  that  a  belligerent  possesses  in  case  of  capture  by  the  enemy,  to  be  treated 
as  a  prisoner  of  war.  And  besides,  this  gives  us  a  very  natural  transition  to 
Chapter  II,  which  follows  immediately  and  fixes  the  condition  of  prisoners  of 
war. 


420  SECOND  COMMISSION 

Before  the  above  declaration,  adopted  on  the  motion  of  Mr,  Martens,  was 
communicated  to  the  subcommission  General  Sir  John  Ardagh,  technical  dele- 
gate of  Great  Britain,  proposed  to  add  at  the  end  of  the  first  chapter  the  follow- 
ing provision: 

Nothing  in  this  chapter  shall  be  considered  as  tending  to  diminish  or 
suppress  the  right  which  belongs  to  the  population  of  an  invaded  country 
to  patriotically  oppose  the  most  energetic  resistance  to  the  invaders  by  every 
legitimate  means. 

From  a  reading  of  the  minutes  of  the  meeting  of  June  20,  it  would  seem 
that  most  of  the  members  of  the  subcommission  were  of  opinion  that  the  rule 
thus  formulated  added  nothing  to  the  declaration  which  Mr.  Martens  had  read  at 
the  opening  of  that  meeting.  The  delegation  of  Switzerland,  nevertheless,  ap- 
peared to  attach  great  importance  to  this  additional  article  and  went  so  far  as 
to  suggest  that  its  adhesion  to  Articles  1  and  2  (Brussels  9  and  10)  might  not 
be  given  if  the  proposal  of  Sir  John  Ardagh  was  not  adopted.  Mr.  Kunzli 
spoke  to  that  effect.  On  the  other  hand,  the  technical  delegate  of  Germany,  Colo- 
nel Gross  von  Schwarzhoff,  emphatically  asserted  that  Article  9  of  Brussels 
(now  the  first  article)  makes  recognition  of  belligerent  status  depend  only  on  con- 
ditions that  are  very  easy  to  fulfill ;  he  said  that  there  was  consequently  in  his 
view  no  need  of  voting  for  Article  10  (now  Article  2),  which  also  recognizes 
as  belligerents  the  population  of  territory  that  is  not  yet  occupied  under  the  sole 
condition  that  it  respect  the  laws  of  war ;  but  that  he  had  nevertheless  voted  for 
that  article  in  a  spirit  of  conciliation.  "  At  this  point,  however,"  said  the  Ger- 
man delegate  most  emphatically,  "  my  concessions  cease ;  it  is  absolutely  im- 
possible for  me  to  go  one  step  further  and  follow  those  who  declare  for  an  ab- 
solutely unlimited  right  of  defense." 

At  the  end  of  the  debate  and  in  consideration  of  the  declaration  adopted 
on  motion  of  Mr.  Martens,  Sir  John  Ardagh  withdrew  his  motion,  for  the  sake 
of  harmony. 

Chapter  II. —  Prisoners  of  war 

(Articles  4  to  20) 

The  chapter  on  prisoners  of  war  in  the  Brussels  Declaration  of  1874  (Ar- 
ticles 23-34)  began  with  a  definition  forming  the  first  paragraph  of  Article  23 
and  couched  in  the  following  terms :  "  Prisoners  of  war  are  lawful  and  dis- 
armed enemies."  This  definition  was,  so  to  speak,  the  residuum  of  another 
[28]  and  much  longer  definition  in  Article  23  of  the  first  draft  submitted  to 
the  Brussels  Conference  by  the  Imperial  Russian  Government.  Considering 
the  rather  vague  character  of  these  definitions  and  the  difficulty  of  finding  any 
other  that  is  more  complete  and  more  precise,  the  subcommission  agreed  to  leave 
out  the  definition  and  to  confine  itself  in  this  chapter  to  saying  what  shall  be  the 
treatment  of  prisoners  of  war. 

It  is  for  these  reasons  that  Article  4,  which  is  the  first  one  under  this  chapter 
and  corresponds  to  Article  23  of  the  Brussels  project,  begins  at  once  with  these 
words:     "  Prisoners  of  war  are  in  the  power  of  the  hostile  Government,  etc." 

The  paragraph  relating  to  acts  of  insubordination  has  also  been  omitted  in 
this  article,  but  it  is  to  be  found  farther  on  in  Article  8,  where  it  seems  to  be 
better  placed. 


FOURTH  MEETING,  JULY  5,  1899:  ANNEX  421 

Most  of  the  other  provisions  adopted  at  Brussels  concerning  this  subject 
of  the  treatment  of  prisoners  of  war  have  been  retained  by  the  subcommission 
with  very  sHght  changes,  an  explanation  of  which  may  be  found  in  the  minutes 
of  the  meetings  of  May  27  and  30. 

Article  5,  respecting  internment  of  prisoners,  is  an  exact  copy  of  Article  24. 

Article  6  combines  the  provisions  of  Articles  25  and  26  of  Brussels  in  a 
slightly  different  wording  proposed  by  Mr.  Beernaert. 

Article  7  is  almost  the  same  as  Article  27,  save  that  it  regulates  the  treat- 
ment of  prisoners  as  to  quarters  as  well  as  to  food  and  clothing. 

Article  8,  respecting  the  discipline  of  prisoners  of  war,  corresponds  to 
Article  28  of  the  Brussels  project,  but  with  a  few  changes  other  than  of  form, 
especially  as  regards  escapes  by  prisoners.  An  analysis  of  these  changes  is  given 
below. 

Article  9  repeats  literally  Article  29  on  the  declaration  of  name  and  rank. 

Article  30  of  the  Brussels  project,  respecting  the  exchange  of  prisoners,  has 
been  omitted  as  useless,  for  the  reason  that  the  question  of  exchange  cannot 
be  made  the  subject  of  a  general  rule,  inasmuch  as  an  exchange  can  of  course 
always  result  from  an  agreement  between  the  belligerents. 

Articles  10,  11,  and  12  concerning  liberation  on  parole,  except  as  to  a  few 
details  of  wording,  the  same  as  Articles  31,  32,  and  33  of  the  Declaration  of 
Brussels. 

But  the  new  Article  13  respecting  persons  to  be  classed  with  prisoners  of 
war  differs  considerably  both  in  form  and  substance  from  Article  34  of  the 
Brussels  project. 

Finally  we  come  to  Articles  14  to  20  which  are  all  new  and  have  been  adopted 
on  the  motion  of  Mr.  Beernaert. 

On  the  whole  then,  it  is  proper  to  furnish  special  explanations  with  regard 
to  Article  8  (old  28),  Article  13  (old  34),  and  the  new  Articles  11  to  17. 

As  has  just  been  said,  a  long  discussion  took  place  on  Article  28,  now 
Article  8,  especially  on  the  subject  of  the  escape  of  prisoners  of  war.  Finally 
it  was  agreed,  as  it  had  been  at  Brussels  in  1874,  that  an  attempt  at  escape  should 
not  go  entirely  unpunished,  but  that  it  is  desirable  to  limit  the  degree  of  punish- 
ment which  it  may  entail,  especially  to  forestall  the  temptation  with  the  enemy  to 
regard  the  act  as  similar  to  desertion  and  therefore  punishable  with  death. 
Consequently  it  was  decided  that  "  escaped  prisoners  who  are  retaken  before 
being  able  to  rejoin  their  army  or  before  having  left  the  territory  occupied  by 
the  army  that  captured  them  are  liable  to  disciplinary  punishment."  Never- 
theless, it  was  agreed  in  the  course  of  the  debate  that  this  restriction  has  no 
application  to  cases  where  the  escape  of  prisoners  of  war  is  accompanied  by 
special  circumstances  amounting,  for  example,  to  a  plot,  a  rebellion,  or  a  riot. 
In  such  cases,  as  General  von  Voigts-Rhetz  remarked  at  Brussels  in  1874,^ 
the  prisoners  are  punishable  under  the  first  part  of  the  same  article  which  says 
that  they  are  "  subject  to  the  laws,  regulations,  and  orders  in  force  in  the  army 
of  the  State  in  whose  power  they  are  " ;  and  it  is  necessary  further  to  supplement 
this  provision  with  the  one  which  has  been  taken  from  the  old  Article  23  and 
added  to  Article  8,  laying  down,  on  the  subject  of  prisoners,  that  "  any  act  of  in- 
subordination justifies  the  adoption  towards  them  of  such  measures  of  severity 
as  may  be  necessary;" 

1  Minutes  of  the  meeting  of  August  6,  1874. 


422  SECOND  COMMISSION 

Article  28  of  the  Brussels  project  provided  particularly  that  arms  may  be 
used,  after  summoning,  against  a  prisoner  of  war  attempting  to  escape.  This 
provision  was  struck  out  by  the  subcommission.  In  doing  so,  the  subcommission 
did  not  deny  the  right  to  fire  on  an  escaping  prisoner  of  war  if  military 
[29]  regulations  so  provide,  but  it  seemed  that  no  useful  purpose  would  be 
served  in  formally  countenancing  this  extreme  measure  in  the  body  of 
these  articles. 

Finally  the  subcommission  retained,  with  some  hesitation,  the  last  para- 
graph of  the  article,  by  the  terms  of  which  "  prisoners  who,  after  succeeding 
in  escaping,  are  again  taken  prisoners,  are  not  liable  to  any  punishment  for  their 
previous  flight."  The  subcommission  was  influenced  by  the  consideration  that 
when  a  prisoner  of  war  has  regained  his  liberty  his  situation  in  fact  and  in  law 
is  in  all  respects  the  same  as  if  he  had  never  been  taken  prisoner.  No  actual 
penalty  should  therefore  apply  to  him  on  account  of  the  anterior  fact. 

Article  34,  now  Article  13  of  the  draft  of  the  subcommission,  has  also  under- 
gone considerable  change.  The  old  wording  was  especially  wanting  in  clearness 
as  it  seemed  to  say  that  the  persons  meant  who  accompany  the  army  without 
being  a  part  of  it  (such  as  newspaper  correspondents,  sutlers,  contractors,  etc.) 
shall  be  made  prisoners  if  they  are  provided  with  regular  permits.  Accord- 
ingly it  would  be  literally  sufficient  in  order  to  be  left  free  not  to  have  the 
regular  permit.  Such  certainly  is  not  the  meaning  of  this  provision.  The  sub- 
commission  consequently  adopted  at  the  suggestion  of  the  reporter  a  more 
precise  wording  which  closely  follows  the  text  of  Article  22  of  the  manual  of 
the  laws  of  war  on  land  of  the  Institute  of  International  Law.  This  text  keeps 
in  sight  the  fact  that  these  persons  cannot  really  be  considered  as  prisoners  of 
war  at  all.  But  it  may  be  necessary  to  detain  them  either  temporarily  or  until 
the  end  of  the  war  and  in  this  case  it  will  certainly  be  advantageous  for  them 
to  be  treated  like  prisoners  of  war.  Nevertheless,  they  can  depend  upon  obtain- 
ing this  advantage  only  if  they  are  "  in  possession  of  a  certificate  from  the  mili- 
tary authorities  of  the  army  they  were  accompanying." 

There  remains  to  be  said  a  few  words  about  the  last  seven  articles  (14-20) 
of  this  chapter,  which  were  added  to  it  on  the  motion  of  his  Excellency  Mr. 
Beernaert,  the  senior  delegate  of  Belgium. 

Mr.  Beern.\ert  called  attention  to  the  fact  that  these  proposals  are  by  no 
means  new,  having  first  been  suggested  by  Mr.  Romberg-Nisard,  who  was  ac- 
tively engaged  in  relieving  the  sufferings  of  the  victims  of  the  war  of  1870,  and 
never  ceased  to  agitate  for  better  treatment  of  the  wounded  and  prisoners  in  wars 
of  the  future. 

These  additional  provisions  provide,  in  the  first  place,  for  making  general 
the  organization  of  information  bureaus  concerning  prisoners,  similar  to  the 
one  instituted  in  Prussia  in  1866  which  rendered  such  great  service  during  the 
war  of  1870-1.  This  is  the  object  of  the  first  of  these  articles  (Article  14).  The 
second  article  (Article  15)  provides  that  certain  facilities  shall  be  given  to  such 
relief  societies  for  prisoners  of  war  as  are  properly  constituted.  The  third 
article  (Article  16)  grants  free  postage  and  other  advantages  to  the  information 
bureaus  and  in  general  for  shipments  made  to  prisoners.  The  fourth  article 
(Article  17)  has  for  its  object  to  favor  payment  of  salary  to  prisoners  who  are 
officers.  The  fifth  and  sixth  articles  (Articles  18  and  19)  secure  to  prisoners 
free  exercise  of  their  religion,  grant  them  facilities  for  making  wills,  and  deal 


FOURTH  MEETING,  JULY  5,  1899 :  ANNEX  423 

with  death  certificates  and  burials.  Finally,  the  last  of  these  new  articles 
(Article  20)  expressly  stipulates  that  after  the  conclusion  of  peace  "  the  re- 
patriation of  prisoners  of  war  shall  be  carried  out  as  quickly  as  possible."  Im- 
mediate absolute  liberation  is  indeed  not  possible,  for  it  would  be  sure  to  lead 
to  disorder. 

This  Article  20  was  to  have  a  second  paragraph  saying  that  no  prisoner 
of  war  can  be  detained  nor  his  liberation  postponed  on  account  of  sentences 
passed  upon  him  or  of  acts  occurring  since  his  capture,  crimes  or  offenses  at 
common  law  excepted.  At  the  suggestion  of  Colonel  Gross  von  Schwarzhoff 
this  provision  was  omitted  by  common  accord  in  consideration  of  the  require- 
ments of  discipline  which  must  be  maintained  and  enforced  with  sufficient  penal- 
ties up  to  the  very  last  day  of  the  captivity  of  prisoners  of  war. 

The  only  one  of  these  additional  provisions  due  to  the  initiative  of  the  senior 
delegate  of  Belgium  that  has  given  rise  to  discussion  is  the  third  (Article  16), 
relative  to  postal,  customs  and  other  privileges.  But  through  the  hearty  sup- 
port of  Mr.  Lammasch,  the  technical  delegate  of  Austria-Hungary,  and  Gen- 
eral DEN  Beer  Poortugael,  the  second  delegate  of  the  Netherlands,  this  article 
was  adopted  unanimously. 

It  should  be  observed  that  postal  and  other  conventions  will  have  to  be 
modified  to  conform  to  this  provision.  As  to  the  customs  franking  privilege, 
it  obviously  applies  only  to  articles  for  the  personal  use  of  the  prisoners. 

It  may  be  interesting  to  state  here  that  these  Articles  14  to  20  even  more 
[30]  than  attain  the  end  that  the  Belgian  delegation  had  in  view  when,  in  1874, 
at  the  Brussels  Conference,  it  proposed  through  the  medium  of  Baron 
Lambermont  six  articles  relative  to  relief  societies  for  prisoners  of  war.  These 
articles  were  then  the  subject  of  a  favorable  order  of  the  day,  but  they  were 
not  embodied  in  the  project  of  the  Declaration  of  Brussels. 

Chapter  III. —  The  sick  and  wounded 
(Article  21) 

The  sole  article  in  this  chapter  is  a  literal  copy  of  Article  35  of  the  Brussels 
project.  It  was  adopted  unanimously  and  without  debate.  As  the  chairman 
of  the  subcommission  remarked,  we  confine  ourselves  to  stating  that  the  rules 
of  the  Geneva  Convention  must  be  observed  betzveen  belligerents.  Moreover, 
the  last  part  of  the  article  anticipates  a  future  modification  of  that  Convention. 

As  you  know,  it  is  stated  elsewhere,  in  Article  60  (old  Article  56),  that 
the  Geneva  Convention  likewise  applies  to  the  sick  and  wounded  interned  in 
neutral  territory. 

SECTION  II.— Hostilities 
Chapter  I. —  Means  of  injuring  the  enemy,  sieges,  and  bombardments 

(Articles  22  to  28) 

This  chapter  combines  under  one  heading  two  distinct  chapters  of  the 
Declaration  of  Brussels,  of  which  the  first  was  entitled  "  Means  of  injuring  the 
enemy"  (Articles  12  to  14),  and  the  second  "Sieges  and  bombardments" 
(Articles  15  to  18). 


424  SECOND  COMMISSION 

The  union  of  these  chapters  in  a  single  one,  as  proposed  by  the  drafting 
committee  and  approved  on  second  reading  by  the  subcommission,  had  for  its 
object  to  make  it  clearly  appear  that  the  articles  respecting  means  of  doing  injury 
are  also  applicable  to  sieges  and  bombardments. 

The  new  Articles  22,  23,  and  24  correspond  exactly,  aside  from  some  changes 
of  wording,  to  Articles  12,  13,  and  14  of  the  Declaration  of  Brussels. 

Article  23  begins  with  the  words :  "  In  addition  to  the  prohibitions  pro- 
vided by  special  conventions,  it  is  especially  forbidden.  .  .  ."  These  special 
conventions  are  first  the  Declaration  of  St.  Petersburg  of  1868,  which  continues 
in  force,  and  then  all  those  of  like  nature  that  may  be  concluded,  especially 
subsequently  to  the  Hague  Conference.  It  seemed  to  the  subcommission  that 
the  general  formula  was  preferable  to  the  old  reading  which  mentioned  only 
the  Declaration  of  St.  Petersburg. 

Article  23  forbids,  under  letter  g,  any  destruction  or  seizure  of  the  enemy's 
property  not  demanded  by  the  necessities  of  war.  The  drafting  committee  had 
proposed  to  omit  this  clause  as  it  seemed  to  it  useless  in  view  of  the  provisions 
farther  on  prescribing  respect  for  private  property ;  but  the  subcommision  re- 
tained it,  on  the  second  reading,  at  the  instance  of  Mr.  Beernaert,  for  the  rea- 
son that  the  chapter  under  consideration  deals  with  limiting  the  eflfects  of  hostili- 
ties, properly  so  called,  while  the  other  provisions  referred  to  treat  more  par- 
ticularly of  occupation  of  hostile  territory. 

The  wording  of  Article  24  (old  14)  has  been  criticized.  Taken  literally  this 
article  might  indeed  be  taken  to  mean  that  every  ruse  of  zvar  and  every  method 
necessary  to  obtain  information  about  the  enemy  and  the  country  should  ipso 
facto  be  considered  "  permissible."  It  is  understood  that  such  is  by  no  means 
the  import  of  this  provision,  which  aims  only  to  say  that  ruses  of  war  and 
methods  of  obtaining  information  are  not  prohibited  as  such.  They  would  cease 
to  be  "  permissible  "  in  case  of  infraction  of  a  recognized  imperative  rule  to 
the  contrary. 

The  Brussels  Article  14  particularly  cited  one  of  these  imperative  rules  — 
that  which  forbids  compelling  the  population  of  an  occupied  territory  to  take  part 
in  military  operations  against  their  own  country  (Article  36  of  Brussels). 
[31]  But  there  are  many  others,  such,  for  example,  as  the  prohibition  against 
the  improper  use  of  a  flag  of  truce  (Article  23  /).  There  are  even  some 
that  are  not  expressly  sanctioned  in  any  article  of  the  Declaration.  And  under 
these  conditions,  not  being  able  to  recall  all  these  rules  with  regard  to  Article 
24,  the  subcommission  thought  it  was  better  to  mention  none  of  them,  believing 
that  the  explanation  now  made  would  be  sufficient  to  indicate  the  true  meaning 
of  this  article. 

Articles  25,  26,  27,  and  28  are  almost  word  for  word  the  same  as  Articles 
15  to  18  of  the  Brussels  project,  the  slight  modifications  therein  being  purely  in 
expression. 

Respecting  the  prohibition  of  bombarding  towns,  villages,  dwellings,  or 
buildings,  which  are  not  defended  (Article  25),  it  is  proper  to  refer  to  an  observa- 
tion made  by  Colonel  Gross  von  Schwarzhoff,  who  said  that  this  prohibition 
certainly  ought  not  to  be  taken  to  prohibit  the  destruction  of  any  buildings  what- 
ever and  by  no  means  when  military  operations  rendered  it  necessary.  This 
remark  met  with  no  objection  in  the  subcommission. 

As  has  been  indicated  at  the  beginning  of  this  report,  the  question  was  asked 


FOURTH  MEETING,  JULY  5,  1899 :  ANNEX  425 

whether  the  last  articles  of  this  chapter  were  to  be  considered  as  applicable  to 
bombardment  of  a  place  on  the  coast  by  naval  forces.  General  den  Beer  Poor- 
TUGAEL,  delegate  of  the  Netherlands,  and  Mr.  Beernaert  maintained  the  affirma- 
tive. But,  on  motion  of  Colonel  Gilinsky,  technical  delegate  of  the  Russian 
Government,  the  examination  of  this  question  was  by  general  agreement  reserved 
for  the  Commission  in  plenary  session. 

Chapter  II. —  Spies 
(Articles  29  to  31) 

The  three  articles  of  this  chapter  reproduce  almost  literally  the  wording  of 
Articles  19  to  22  of  the  Brussels  project.  Former  Articles  19  and  22  have, 
on  the  motion  of  General  Mounier,  technical  delegate  of  the  French  Govern- 
ment, merely  been  combined  to  form  Article  29.  These  two  provisions  in  reality 
deal  with  a  single  idea,  which  is  to  determine  who  can  be  considered  and  treated 
as  a  spy,  and  to  specify  at  once,  merely  by  way  of  example,  some  special  cases  in 
which  a  person  cannot  be  considered  as  a  spy. 

With  respect  to  Article  30  (Article  20  of  Brussels)  it  has  been  remarked  that 
in  applying  the  penalty  the  requirements  of  a  previous  judgment  is,  in  espionage 
as  in  all  other  cases,  a  guaranty  that  is  always  indispensable,  and  the  new  phras- 
ing was  adopted  with  the  purpose  of  saying  this  more  explicitly. 

It  results  from  Article  31  (Article  21  of  Brussels)  that  a  spy  not  taken  in 
the  act  but  falling  subsequently  into  the  hands  of  the  enemy  incurs  no  respon- 
sibility for  his  previous  acts  of  espionage.  This  special  immunity  is  in  harmony 
with  the  customs  of  warfare ;  but  the  words  in  italics  have  been  added,  on  the 
second  reading,  to  show  clearly  that  this  immunity  has  reference  to  acts  of  espion- 
age only  and  does  not  extend  to  other  offenses. 

Chapter  III. —  Parlementaires 
(Articles  32  to  34) 

The  three  articles  composing  this  chapter  correspond  to  Articles  43,  44, 
and  45  of  the  Brussels  project. 

The  text  of  Article  32  differs  slightly  from  that  of  Article  43.  As  a 
consequence  the  parlementaire  may  be  accompanied  not  only  by  a  trumpeter, 
bugler  or  drummer,  and  by  a  flag-bearer,  but  also  by  an  interpreter.  It  is  also  a 
consequence  of  the  new  reading  that  he  may  do  without  one  or  more  of  these 
attendants  and  go  alone  carrying  the  white  flag  himself. 

Article  33,  with  the  exception  of  some  changes  in  form  adopted  on  the 
first  and  second  readings,  is  the  same  as  the  first  two  paragraphs  of  the  Brussels 
Article  44.  It  deals  with  the  right  that  every  belligerent  has  either  to  refuse  to 
receive  a  parlementaire,  or  to  take  the  measures  necessary  in  order  to  prevent 
[32]  him  from  profiting  by  his  mission  to  get  information,  or  finally  to  detain  him 
in  case  of  abuse.  All  these  rules  conform  to  the  necessities  and  customs 
■of  war. 

The  Brussels  Article  44  contained  a  final  paragraph  permitting  a  belligerent 
to  declare  "  that  he  will  not  receive  parlementaires  during  a  certain  period," 
and  adding  that  "  parlementaires  presenting  themselves  after  such  a  notification, 
from  the  side  to  which  it  has  been  given,   forfeit  the  right  of  inviolability." 


426  SECOND  COMMISSION 

The  loss  of  inviolability  is  certainly  an  extreme  penalty ;  but  this  special  point 
has  no  longer  any  interest,  for  this  provision  is  omitted  in  the  new  draft.  It 
appears  from  the  discussion  which  took  place  at  the  meeting  of  May  30,  and 
especially  from  the  remarks  made  on  this  article  by  the  first  delegate  of  Italy, 
his  Excellency  Count  Nigra,  that  according  to  the  views  of  the  subcommission, 
the  principles  of  the  law  of  nations  do  not  permit  a  belligerent  ever  to  declare, 
even  for  a  limited  time,  that  he  will  not  receive  flags  of  truce.  At  the  Brussels 
Conference  in  1874,  moreover,  this  provision  was  debated  at  length  and  was 
only  finally  accepted  to  satisfy  the  German  delegate,  General  von  Voigts-Rhetz. 
The  technical  delegates  at  the  Hague  Conference,  and  conspicuously  the  German 
delegate,  Colonel  Gross  von  Schwarzhoff,  have  on  the  contrary  seemed  to  con- 
sider that  the  necessities  of  warfare  are  sufficiently  regarded  in  the  option  that 
every  military  commander  has  of  not  receiving  a  flag  of  truce  in  all  circumstances 
(first  paragraph  of  Article  33).  They  accordingly  voted  with  the  entire  subcom- 
mission  for  the  abrogation  of  the  last  paragraph  of  former  Article  44. 

Article  35  is  identical  with  Article  45  of  Brussels.  It  provides  that  "  the 
parlementaire  loses  his  rights  of  inviolability  if  it  is  proved  in  a  clear  and  in- 
contestable manner  that  he  has  taken  advantage  of  his  privileged  position  to 
provoke  or  commit  an  act  of  treason."  This  provision  elicited  no  remarks  as 
to  its  substance.  It  was  merely  asked  how  a  parlementaire  could  commit  an  act 
of  treason  against  the  enemy.  The  text  was  nevertheless  retained  in  view  of 
certain  systems  of  penal  legislation  which  regard  the  instigator  of  an  offense  as 
a  principal. 

Chapter  IV. —  Capitulations 
(Article  35) 

The  sole  article  of  this  chapter  is,  with  a  few  changes  in  wording,  like 
Article  46  of  the  Brussels  project. 

The  clause  according  to  which  "  capitulations  can  never  include  conditions 
contrary  to  honor  or  military  duty,"  proposed  at  Brussels  by  the  French  delegate. 
General  Arnaudeau,  and  inserted  almost  literally  in  Article  46,  has  been  re- 
tained in  principle.  The  wording  of  the  new  Article  35,  as  adopted  by  the  sub- 
commission,  gives  even  a  more  imperative  form  to  this  principle  by  saying  that 
the  capitulations  "  must  take  into  account  the  rules  of  military  honor." 

Chapter  V. —  Armistices 
(Articles  36  to  41) 

This  chapter  contains  six  articles  corresponding  to  Articles  47  to  52  of  the 
Brussels  project  and  almost  reproduces  their  wording. 

Article  36  determines  the  effects  and  duration  of  an  armistice;  Article  37 
distinguishes  between  general  and  local  armistices.  These  two  articles  are  simply 
reproductions  of  Articles  47  and  48  of  Brussels. 

Article  38,  dealing  with  notification  of  an  armistice  and  with  suspension 
of  hostilities,  differs  from  Brussels  Article  49  in  admitting  that  hostilities  can 
be  suspended  not  only  from  the  very  moment  of  notification  but  after  a  time 
agreed  upon. 

The  wording  of  Article  39  follows  that  of  Article  50  of  Brussels,  but  ex- 


FOURTH  MEETING,  JULY  5,  1899:  ANNEX  427 

pands  it  and  renders  it  more  exact.  In  effect,  it  permits  an  armistice  to  regu- 
late not  only  the  communications  hetiveen  the  populations  but  also  those 
[33]  with  them ;  at  the  same  time  it  says  that  this  shall  only  be  "  in  the  theater 
of  war."  In  the  absence  of  special  clauses  in  the  armistice  these  matters 
are  necessarily  governed  by  the  ordinary  rules  of  warfare,  especially  by  those 
concerning  occupation  of  hostile  territory. 

The  subject  of  the  violation  of  an  armistice  by  one  of  the  parties  gave  rise 
to  a  discussion  in  the  meeting  of  May  30.  Article  51  of  the  Brussels  project 
confined  itself  on  this  subject  to  saying  that  a  violation  of  an  armistice  by  one 
of  the  parties  gives  the  other  the  right  to  denounce  it.  At  the  suggestion  of 
Colonel  Gross  von  Schwarzhoff,  the  subcommission  admitted  that  the  right  to 
denounce  an  armistice  would  not  always  be  sufficient,  and  that  it  was  necessary 
to  recognize  in  the  belligerent  the  right,  in  cases  of  urgency,  "  of  recommencing 
hostilities  immediately."  On  the  other  hand,  the  subcommission  thought  that 
in  order  to  justify  a  denouncement  of  an  armistice  and,  with  greater  reason, 
to  authorize  an  immediate  resumption  of  hostilities,  there  must  be  a  serious 
violation  of  the  armistice ;  it  is  for  this  reason  that  the  new  Article  40  differs  to 
that  extent  from  the  article  accepted  at  Brussels. 

Article  52,  respecting  violation  of  an  armistice  by  individuals,  was  not 
changed  and  has  become  the  new  Article  41.  It  only  provides  for  "  the  punish- 
ment of  the  offenders  and,  if  necessary,  compensation  for  the  losses  sustained." 


SECTION  III. —  Military  Authority  Over  the  Territory  of  the 

Hostile  State 

(Articles  42  to  56) 

The  above  title  is  that  of  the  first  chapter  (Articles  1  to  8)  of  the  Declara- 
tion of  Brussels.  As  early  as  the  meeting  of  June  1,  the  subcommission  decided 
to  place  the  articles  concerning  contributions  and  requisitions  (Brussels  Articles 
40  to  42)  also  in  this  chapter  and  to  examine  them  at  the  same  time.  Finally  it  in- 
structed the  drafting  committee  also  to  place  in  this  chapter  the  new  text  that 
had  already  been  adopted  for  Articles  36  to  39  inclusive  of  the  Declaration  of 
Brussels,  where  they  form  the  chapter  entitled  "  Military  authority  over  private 
individuals."  Thus  the  present  chapter  has  been  lengthened  considerably. 
Moreover,  the  debate  on  it  has  been  arduous;  but  the  patient  courtesy  of  Mr. 
Martens,  chairman  of  the  subcommission,  together  with  the  good  feeling  of  all 
its  members,  has  resulted  in  the  unanimous  agreement  that  every  one  ardently 
hoped  for. 

The  first  article  of  this  chapter  (Article  42),  defining  occupation,  is  indentical 
with  the  first  article  of  the  Declaration  of  Brussels.  It  should  be  stated  that 
it  was  adopted  unanimously  b)*  the  subcommission,  as  also  were  all  or  nearly  all 
of  the  principal  articles  of  this  chapter. 

Article  43  condenses  into  a  single  text  Articles  2  and  3  of  the  Bru.ssels 
Declaration,  The  new  wording  was  proposed  by  Mr.  Bihourd,  the  Minister  of 
France  at  The  Hague  and  one  of  the  delegates  of  his  Government.  The  last 
words  of  Article  43,  where  it  is  said  that  the  occupant  shall  restore  or  ensure 
order  "  while  respecting,  unless  absolutely  prevented,  the  laws  in  force  in  the 
country,"  really  give  all  the  guaranties  that  the  old  Article  3  could  offer  and  do 


428  SECOND  COAIMISSION 

not  offend  the  scruples  of  which  Mr.  Beernaert  spoke  in  his  address,  referred 
to  at  the  beginning  of  this  report,  which  had  led  him  to  propose  at  first  that 
Article  3  be  omitted. 

The  omission  of  Article  4  of  the  Brussels  Declaration  was  unanimously 
voted  for  at  the  instance  of  Mr.  Beernaert,  vigorously  supported  by  Mr.  van 
Karnebeek.  The  first  delegate  of  the  Netherlands  stated  that  he  opposed  any 
provision  that  might  seem  directly  or  indirectly  to  give  the  public  officers  of 
an  invaded  country  any  authority  to  place  themselves  at  the  service  of  the  in- 
vader. It  was  not  denied,  however,  that  certain  officers,  particularly  municipal 
officers,  might  sometimes  best  perform  their  duty,  in  a  moral  sense  at  least, 
towards  their  people  if  they  remained  at  their  posts  in  the  presence  of  the  in- 
vader. 

The  four  following  articles.  Articles  44  to  47  inclusive,  are  the  Brussels 
Articles  36  to  39  inclusive,  with  some  very  slight  changes.  They  set  forth  the 
recognized  essential  principles  which  must  serve  the  invader  and  the  occupant  as 
a  general  rule  of  conduct  in  his  relations  with  the  population.  These  principles 
safeguard  the  honor  and  lives  of  individuals  and  their  private  property, 
[34]  whether  individual  or  collective,  as  well  as  respect  for  religious  convic- 
tions. 

Besides,  as  Colonel  Gross  von  Schwarzhoff  remarked  without  contradic- 
tion, these  limitations  could  not  be  deemed  to  check  the  liberty  of  action  of  bel- 
ligerents in  certain  extreme  circumstances  which  may  be  likened  to  a  kind  of 
legitimate  defense. 

The  new  Article  48,  like  Article  5  of  the  Brussels  Declaration,  provides  that 
the  occupant  shall  collect  the  existing  taxes,  and  in  this  case  prescribes  that  he 
must  "  defray  the  expenses  of  the  administration  of  the  occupied  territory  to 
the  same  extent  as  the  legitimate  Government  was  so  bound."  It  may  be  ob- 
served that  the  new  article  adopts  a  conditional  form.  This  wording  was  pro- 
posed by  the  reporter  with  a  view  to  obtaining  the  support  of  Mr.  Beernaert 
and  other  members  of  the  subcommission  who  had  expressed  the  fears  aroused 
in  their  minds  by  any  wording  apparently  recognizing  rights  in  an  occupant  as 
such. 

The  four  next  articles,  49  to  52  inclusive,  deal  with  extraordinary  contribu- 
tions, with  fines,  and  with  requisitions,  and  take  the  place  of  Articles  40  to  42 
inclusive  of  the  Brussels  Declaration.  Quite  a  divergence  of  views  on  the  subject 
of  these  articles  was  evidenced  in  the  debate. 

On  motion  of  Mr.  Bourgeois,  seconded  by  Mr.  Beldiman,  the  question 
was  referred  to  the  drafting  committee  with  an  instruction  to  set  forth  in  a  new 
text  only  the  points  on  which  an  agreement  seemed  possible. 

The  committee,  of  which  Mr.  Bourgeois  was  chairman,  made  a  thorough 
study  of  these  questions  with  the  active  assistance  of  Messrs.  Beernaert,  van 
Karnebeek,  and  Odier,  and  it  ascertained  that  agreement  certainly  existed  on 
three  important  points  concerning  the  levying  of  contributions  of  any  kind  in 
hostile  territory.     These  three  points  are  the  following: 

1.  Every  order  to  collect  contributions  should  emanate  from  a  respon- 
sible military  chief,  and  should  be  given,  as  far  as  possible,  in  writing. 

2.  For  all  collections,  especially  those  of  sums  of  money,  it  is  necessary 
to  take  into  account  as  far  as  possible  the  distribution  and  assessment  of  the 
existing  taxes. 


FOURTH  MEETING,  JULY  5,  1899:  ANNEX  429 

3.  Every  collection  should  be  evidenced  by  a  receipt. 

The  committee  next  discussed  the  question  whether  it  should  confine  itself 
to  giving  expression  to  these  three  purely  formal  conditions  and  to  determining 
to  what  extent  they  are  applicable  to  the  requisitions  in  kind  or  money  and  the 
fines  required  by  the  occupant.  It  came  to  the  conclusion  that,  relying  on  the 
general  considerations  indicated  at  the  beginning  of  this  report,  as  being  of  a 
nature  to  dispose  of  the  objections  stated  by  Mr.  Beernaert,  it  would  be  not 
only  possible  but  also  highly  desirable  to  state  certain  principles  on  the  lines 
of  Articles  40  to  42  of  the  Brussels  Declaration,  that  is  to  say,  concerning 
the  limitations  to  be  placed  on  the  actual  power  which  the  invader  exercises 
against  the  legal  authorities  and  which  in  its  tendency  weakens  the  principle  of 
respect  for  private  property.  The  rules  to  be  laid  down  relate  to  three  cate- 
gories of  acts: 

a.  Requisitions  for  payments  in  kind  (money  being  excepted),  and  for 
personal  services,  or  in  other  words,  *'  requisitions  in  kind  and  services " 
(Article  51)  ; 

b.  The  levying  and  collecting  of  contributions  of  money  beyond  the 
existing  taxes  (Article  49)  ; 

c.  The  imposition  and  collection  of  what  are  improperly  called  "  fines  " 
(Article  50). 

a.  As  to  requisitions  in  kind  and  services,  it  has  been  admitted  that  the 
occupant  cannot  demand  them  from  communes  or  inhabitants  except  "  for 
the  needs  of  the  army  of  occupation."  This  is  the  rule  of  necessity;  but 
this  necessity  is  that  of  maintaining  the  army  of  occupation.  It  is  no  longer 
the  rather  vague  criterion  of  "  necessities  of  war "  mentioned  in  Article  40 
of  the  Brussels  project  under  which,  strictly,  the  country  might  be  systematically 
exhausted. 

It  has  been  fully  agreed  to  retain  the  provision  of  Article  40  of  the  Brussels 
Declaration  which  requires  that  the  requisitions  and  services  shall  be  "  in  pro- 
portion to  the  resources  of  the  country,  and  of  such  a  nature  as  not  to  involve 
the  population  in  the  obligation  of  taking  part  in  the  operations  of  the  war 
against  their  country." 

It  was  necessary  to  recognize  that  one  of  the  three  formal  conditions  men- 
tioned above,  that  of  collection  "  following  the  local  rules  of  distribution  and 
assessment  of  taxes,"  although  applicable  in  a  certain  degree  to  contributions  in 
personal  services,  is  evidently  not  applicable  to  requisitions  in  kind  so  called,  that 
is  to  say,  the  requisition  of  particular  objects  in  the  hands  of  their  owners 
[35]  either  to  make  temporary  use  of  them  or  for  consumption.  The  committee 
therefore  thought,  and  the  subcommission  agreed  thereto,  that  some  limita- 
tions should  be  stated  here  so  that  the  requisitions  and  services  demanded  will 
be  "  in  proportion  to  the  resources  of  the  country." 

There  remain  two  other  formal  conditions  that  were  agreed  upon,  one 
respecting  the  order  for  the  collection  and  the  other  respecting  the  receipt. 
These  two  conditions  already  appeared  in  Article  42  of  the  Brussels  project, 
and  the  committee  had  little  to  do  beyond  reproducing  them.  In  conformity  with 
the  Brussels  text  it  has  been  agreed  that  the  requisition  orders  must  emanate 
only  from  the  commander  on  the  spot,  but  that  in  this  case  the  requirement 
of  a  written  order  would  be  excessive.     Military  necessities  are  opposed  to  de- 


430  SECOND  COMMISSION 

manding  for  ordinary  daily  requisitions  a  higher  authority  than  that  of  the 
officer  on  the  spot,  and  a  written  order  would  be  superfluous  in  view  of  the 
obligation  to  give  a  receipt. 

Lastly,  the  wording  agreed  upon  in  the  matter  of  requisitions  recommends 
the  rule  of  payment  therefor  in  money,  although  such  payment  is  not  made 
a  hard-and-fast  obligation.  Such  payments  will  ordinarily  take  place  under 
the  form  of  real  purchases  instead  of  requisitions.  And  it  is  to  be  noted  that 
this  will  often  be  not  only  a  method  of  strict  humanity  but  also  commonly  one 
of  shrewd  policy,  if  only  to  deter  the  people  from  hiding  their  provisions  and 
produce.  Besides,  the  army  of  occupation  will  obtain  in  the  same  country  the 
money  necessary  for  payments  on  account  of  requisitions  or  purchases  by  means 
of  contributions  whose  weight  will  be  distributed  over  all,  whilst  requisitions 
without  indemnity  strike  at  random  upon  isolated  individuals. 

b.  As  to  the  tnoney  contributions  that  the  occupant  may  wish  to  collect  be- 
yond the  regular  taxes,  the  subcommission  at  the  instance  of  the  drafting  com- 
mittee agreed  upon  the  very  interesting  and  valuable  rule  for  occupied  territory, 
that  except  in  the  special  cases  of  fines,  which  are  the  subject  of  a  separate 
article,  these  contributions  can,  like  requisitions,  be  levied  "  for  the  needs  of 
the  army "  alone.  The  only  other  legitimate  motive  for  collecting  the  con- 
tributions would  lie  in  the  administrative  needs  of  the  occupied  territory,  and 
the  population  thereof  evidently  cannot  make  a  just  complaint  on  that  score. 

On  the  whole  what  is  forbidden  is  levying  contributions  for  the  purpose  of 
enriching  oneself. 

It  is  important  to  state  that  this  formula  is  more  stringent  than  that  of 
Article  41  of  the  Brussels  Declaration;  and  right  here  is  a  point  that  received 
the  especial  attention  of  those  members  of  the  subcommission  who,  being  properly 
interested  by  the  situation  of  their  countries,  showed  themselves  above  all  so- 
licitous to  restrain  as  far  as  possible  by  legal  rules  the  absolute  liberty  of  action 
that  success  in  arms  actually  gives  to  an  invader. 

The  three  formal  conditions  indicated  above  (the  order  for  collection,  the 
collection,  and  the  receipt)  have  unlimited  application  to  these  contributions, 
but  it  seemed  best  to  insert  them  in  a  special  article  applicable  to  every  collection 
of  money. 

c.  As  to  fines,  a  separate  article  seemed  necessary  in  order  that  it  might 
be  determined  as  exactly  as  possible  in  what  cases  it  is  proper  to  impose  fines. 

In  the  view  of  the  committee  the  word  fines  itself  is  not  quite  apt  because 
it  lends  itself  to  confusion  in  thought  with  penal  law.  Certain  members  of  the 
committee  have  even  urged  that  the  use  of  the  word  "  repression  "  be  avoided. 

According  to  the  point  of  view  at  first  taken  by  the  subcommission,  this 
article  ought  to  deal  only  with  what  is  given  the  special  designation  "  fines"  in 
the  law  of  war,  that  is  a  particular  form  of  extraordinary  contribution  consist- 
ing in  the  collection  of  sums  of  money  by  the  occupant  for  the  purpose  of  check- 
ing acts  of  hostility.  On  this  subject  the  subcommission  was  unanimously  of 
opinion  that  this  means  of  restraint  which  strikes  the  mass  of  the  population 
ought  only  to  be  applied  as  a  consequence  of  reprehensible  or  hostile  acts  com- 
mitted by  it  as  a  whole  or  at  least  permitted  by  it  to  be  committed.  Conse- 
quently, acts  that  are  strictly  those  of  individuals  could  never  give  rise  to 
collective  punishment  by  the  collection  of  extraordinary  contributions,  and  it 


FOURTH  MEETING,  JULY  5,  1899:  ANNEX  431 

is  necessary  that  in  order  to  inflict  a  penalty  on  the  whole  community  there  must 
exist  as  a  basis  therefor  at  the  very  least  a  passive  responsibility  therefor  on  the 
part  of  the  community.  Having  proceeded  thus  far  upon  this  course,  the  draft- 
ing committee  first,  and  then  the  subcommission,  thought  they  could  go  still 
further  and,  without  prejudging  the  question  of  reprisals,  declare  that  this  rule 
is  true,  not  only  for  fines,  but  for  every  penalty,  whether  pecuniary  or  not,  that 
is  sought  to  be  inflicted  upon  the  whole  of  a  population. 

Finally,  the  subcommission  approved  the  special  Article  52  proposed  by 
the  committee,  concerning  the  three  formal  rules  applicable  to  every  collection 

whatever  of  sums  of  money  by  the  occupant. 
[36]   It  is  on  the  strength  of  the  foregoing  considerations  that  the  subcommis- 
sion has  adopted  with  only  a  few  slight  modifications  in  form  Articles  49 
to  52  of  the  text  proposed  to  it  by  the  drafting  committee. 

It  is  also  proper  to  say  that  these  provisions  have  been  voted  unanimously 
with  the  exception  of  the  vote  of  the  delegate  of  Switzerland  on  Articles  51  and  52. 
That  delegate  had  proposed  in  behalf  of  his  Government  that  the  right  to  claim 
payment  or  reimbursement  on  the  evidence  of  the  receipts  be  expressly  stipulated 
in  these  articles.  The  subcommission  thought  that  such  a  stipulation  would  be 
out  of  place  in  the  proposed  Declaration  as  it  relates  rather  to  internal  public  law 
and  will  naturally  be  the  subject  of  one  of  the  clauses  of  the  treaty  of  peace. 

The  next  article,  bearing  the  number  53,  corresponds  to  Article  6  of  the 
Brussels  Declaration.  It  deals  with  seizure  by  the  occupant  of  the  personal 
property  of  the  hostile  State  and,  by  extension,  of  all  material  serviceable  for 
carrying  on  war  and  especially  of  railway  plant. 

The  subcommission  unanimously  adopted  the  first  paragraph  of  this  article 
at  once  without  making  any  change  therein.  Such  was  not  the  case  with  the 
second  paragraph,  which  derogates,  especially  in  the  matter  of  railway  plant, 
from  the  principle  of  respect  for  private  property.  Mr.  Beernaert  proposed 
to  indicate  that  seizure  of  this  material  can  only  be  in  the  nature  of  a  sequestra- 
tion, aside  from  the  option  of  requisitioning  it  for  the  needs  of  the  war.  This 
proposal  was  discussed  at  length,  with  the  result  that  this  paragraph  and  its 
amendments  were  returned  to  the  drafting  committee.  That  committee  ex- 
pressed the  opinion  that  if  greater  exactness  were  given  to  the  wording  of  this 
provision,  it  would  probably  be  impossible  to  reach  an  agreement,  and  that  it 
therefore  seemed  best  to  preserve  as  far  as  possible  the  text  of  the  Brussels  draft. 
Nevertheless  the  draft  was  condensed  into  a  single  sentence  for  the  sake  of  pre- 
cision, and,  on  the  proposal  of  the  drafting  committee,  the  subcommission  also 
decided  to  omit  an  ambiguous  clause  which  said  that  the  means  in  question 
of  carrying  on  war  "  cannot  be  left  by  the  army  of  occupation  at  the  disposal  of 
the  enemy."  Moreover  this  clause  seemed  to  contain  an  allusion  to  the  idea 
of  sequestration  which  the  subcommission  wished  to  avoid. 

On  the  other  hand,  the  drafting  committee  and  later  the  subcommission 
accepted  the  principle  of  the  amendment  proposed  by  Mr.  Bille,  the  senior  dele- 
gate of  Denmark,  concerning  "  shore  ends  of  cables."  It  was  therefore  decided 
to  say :  "  Land  telegraphs  including  shore  ends  of  cables."  The  author  of  the 
amendment  further  specified  the  shore  ends  of  cables  which  are  "established 
within  the  maritime  territorial  limits  of  the  State." 

As  it  was  necessary  to  refrain  from  deahng  here,  even  incidentally,  with 


432  SECOND  COMMISSION 

the  very  delicate  questions  of  the  nature  of  the  rights  of  a  State  over  the  ad- 
jacent territorial  sea  and  of  the  extent  of  such  marginal  waters,  the  last  words 
of  Mr.  Bille's  amendment  were  not  adopted. 

Furthermore,  on  motion  of  Mr.  Lammasch,  it  was  decided  that  the  article 
should  mention  telephones. 

It  did  not  seem  opportune  to  make  any  special  stipulation  with  regard  to 
the  application  of  this  article  that  the  belligerent  who  makes  a  seizure  is  obliged 
to  give  a  receipt  as  in  the  case  of  requisitions ;  but  the  committee  was  neverthe- 
less of  opinion  that  the  fact  of  seizure  should  be  clearly  stated  one  way  or 
another  if  only  to  furnish  the  owner  of  the  articles  seized  with  an  opportunity 
to  claim  the  indemnity  expressly  provided  in  the  text. 

The  proposal  by  Mr.  Odier  that  "  railway  plant  even  when  belonging  to 
the  enemy  State  shall  be  restored  at  the  conclusion  of  peace  "  was  not  accepted, 
as  the  committee  believed  that  this  question  was  among  those  that  should  be 
settled  by  the  treaty  of  peace. 

Article  54,  which  is  wholly  new  and  due  to  the  initiative  of  Messrs.  Beer- 
NAERT  and  Eyschen,  prescribes  that :  "  the  plant  of  railways  coming  from 
neutral  States,  whether  the  property  of  those  States  or  of  companies  or  of 
private  persons,  shall  be  sent  back  to  them  as  soon  as  possible."  Mr.  Beernaert 
had  suggested  ordering  immediate  restitution  of  this  material  with  a  prohibition 
of  using  it  for  the  needs  of  the  war;  but  the  subcommission  agreed  with  the 
drafting  committee  in  thinking  that  it  was  sufficient  to  lay  down  the  principle  of 
restitution  within  a  short  time  for  the  sole  purpose  of  pointing  out  that  the  ma- 
terial belonging  to  neutrals,  unlike  that  of  belligerents,  cannot  be  the  object  of 
seizure. 

Article  55,  relative  to  the  administration  of  State  property  in  occupied  ter- 
ritory, is  a  verbatim  reproduction  of  Article  7  of  the  Brussels  draft.  Article 
56,  too,  which  relates  to  respect  for  property  belonging  to  communes  and 
[37]  charitable  and  other  institutions,  is  identical  with  the  Brussels  Article 
8,  save  for  a  very  slight  change  in  wording  of  the  second  paragraph. 
There  can  be  no  doubt  that  the  expression  "  institutions  dedicated  to  religion  " 
found  in  this  Article  56,  applies  to  all  institutions  of  that  kind,  as  churches, 
temples,  mosques,  synagogues,  etc.,  without  any  discrimination  between  the 
divers  forms  of  worship.  This  was  already  affirmed  at  Brussels  in  1874,  and 
it  is  likewise  the  answer  given  for  the  committee  to  General  Mirza  Riza  Khan, 
the  senior  delegate  of  Persia,  in  response  to  a  request  for  explanation. 

A  general  observation  should  be  made  on  the  subject  of  all  the  articles 
comprised  in  Section  III.  This  is  that  the  restrictions  imposed  on  the  liberty 
of  action  of  an  occupant  apply  a  fortiori  to  an  invader  when  an  occupation  has 
not  yet  been  established  in  the  sense  of  Article  42. 

Thus  Articles  44  and  45  apply  to  the  invader  as  well  as  to  the  occupant, 
and  either  of  them  will  necessarily  be  forbidden  to  force  the  population  of  a 
territory  to  take  part  in  military  operations  against  its  own  country  or  to  swear 
allegiance  to  the  hostile  Power. 

As  to  the  collection  of  contributions  and  requisitions  or  to  the  seizure  of 
materiel,  it  is  understood  that  an  invader  shall  stand  in  these  matters  in  the 
same  position  as  an  occupant. 


FOURTH  MEETING,  JULY  5,  1899:  ANNEX  433 


SECTION  IV. —  The  Internment  of  Belligerents  and  the  Care  of 
THE  Wounded  in  Neutral  States 

(Articles  57  to  60) 

The  four  articles  comprised  in  this  final  chapter  of  the  draft  voted  by  the 
subcommission  are  a  verbatim  copy  of  Articles  53  to  56  inclusive  of  the  Brussels 
project,  with  the  exception  of  the  addition  of  a  supplementary  paragraph  to 
Article  59. 

At  the  opening  of  the  discussion  on  these  articles,  and  particularly  with 
reference  to  the  first  one,  which  treats  of  the  internment  of  belligerents  on  neutral 
territory,  his  Excellency  Mr.  Eyschen,  the  senior  delegate  of  Luxemburg,  in 
the  meeting  of  June  6  spoke  of  the  special  situation  of  the  Grand  Duchy  under 
the  Treaty  of  London  of  1867  with  regard  to  this  obligation  to  intern  belligerents. 
That  treaty  disarmed  the  Luxemburg  Government,  and  does  not  permit  it  to 
maintain  more  troops  than  are  necessary  to  preserve  public  order.  The  result 
is  that  Luxemburg  could  not  assume  the  same  obligation  as  the  other  States.  On 
the  request  of  Mr.  Eyschen  record  was  made  of  his  declaration  that  he  intends 
to  reserve  to  his  country  all  rights  under  the  Treaty  of  London  of  May  11,  1867. 
and  especially  Articles  2,  3,  and  5  thereof. 

Articles  53  and  54  of  the  Brussels  project  respecting  the  internment  of 
belligerents  on  neutral  territory  were  then  adopted  without  modification  and  have 
become  Articles  57  and  58  of  the  subcommission's  draft. 

Article  59  relating  to  passage  over  neutral  territory,  that  is  to  say,  across 
neutral  territory,  of  the  wounded  or  sick  belonging  to  belligerent  armies,  is  like 
the  Brussels  Article  55  except  for  the  addition  of  the  third  paragraph.  This 
supplementary  paragraph  was  adopted  on  the  first  reading  on  motion  of  Mr. 
Beernaert  and  General  Mounier,  as  follows :  "  When  once  admitted  into 
neutral  territory,  the  sick  or  wounded  can  be  returned  only  to  their  country  of 
origin." 

But  doubts  immediately  arose  as  to  the  exact  meaning  of  this  stipulation. 
Several  members  of  the  committee  believed  that  it  gave  authority  to  the  neutral 
State  to  restore  the  wounded  and  sick  forthwith  to  their  country  of  origin, 
whereas  evidently  the  only  question  should  be  that  of  forbidding  the  use  of  neu- 
tral territory  for  the  purpose  of  conveying  sick  or  wounded  to  a  hostile  country 
where  they  would  become  prisoners  of  war.  The  new  draft  precludes  all  doubt, 
by  saying  that  "  wounded  or  sick  brought  under  these  conditions  into  neutral 
territory  by  one  of  the  belligerents,  and  belonging  to  the  hostile  party,  must  be 
guarded  by  the  neutral  State,  so  as  to  ensure  their  not  taking  part  again  in  the 
operations  of  the  war."  General  Zuccari,  the  technical  delegate  of  the  Italian 
Government,  declared  that  having  in  view  respect  for  absolute  impartiality  on 
the  part  of  neutrals,  he  regretted  that  he  could  not  give  his  approval  to  this 

last  wording  any  more  than  to  the  preceding  one. 
[38]  There  remained  the  case  of  wounded  or  sick  belonging  to  the  army  of  the 
belligerent  which  is  conveying  them,  but  which  for  one  reason  or  another,  in- 
stead of  simply  passing  through  the  neutral  territory,  stops  there.  It  surely  would 
be  extraordinary  if  they  could,  when  they  recover,  take  part  again  in  the  opera- 
tions of  the  war,  and  that  is  why  the  subcommission  adopted  on  second  reading. 


434  SECOND  COMMISSION 

on  the  motion  of  Mr.  Beernaert,  an  additional  provision  stipulating  that  these 
wounded  or  sick  must  likewise  be  guarded  by  the  neutral  State. 

Mr.  Crozier  had  drawn  the  attention  of  the  subcommission  to  a  contradic- 
tion existing  in  his  opinion  between  the  paragraph  in  question  and  Article  10 
of  the  draft  for  the  adaptation  of  the  principles  of  Geneva  Convention  to  mari- 
time warfare.  It  seems  that  this  contradiction  was  only  apparent;  but  in  any 
case  it  disappears  in  the  new  wording. 

With  respect  to  the  whole  principle  of  Article  59,  General  Mounier  had 
appeared  rather  inclined  to  ask  that  the  sick  and  wounded  be  denied  any  passage, 
in  view  of  the  indirect  service  that  the  neutral  State  could  render  to  one  of  the 
belligerents  by  making  it  easy  for  him  to  relieve  himself  of  his  wounded  and 
sick.  The  whole  subcommission  was  agreed  that  the  neutral  State  should  be 
guided  by  rules  of  absolute  impartiality  in  lending  its  humane  aid  under  such 
circumstances,  and  in  the  meeting  of  June  8  a  sort  of  authentic  commentary  on 
the  meaning  of  this  article  was  proposed  by  Mr.  Beernaert,  accepted  by  General 
Mounier,  and  unanimously  adopted.  This  official  explanation  is  in  the  follow- 
ing terms: 

This  article  has  no  other  bearing  than  to  establish  that  considerations  of 
humanity  and  hygiene  may  determine  a  neutral  State  to  allow  wounded  or 
sick  soldiers  to  pass  across  its  territory  without  failing  in  its  duties  of 
neutrality. 

Finally  Article  60  reproduces  verbatim  the  final  Article  56  of  the  Declaration 
of  Brussels.  It  prescribes  that  the  Geneva  Convention  applies  to  sick  and 
wounded  interned  in  neutral  territory. 

After  the  Commission  shall  have  decided  on  the  text  of  the  project  of  the 
■"  Declaration  respecting  the  laws  and  customs  of  war  on  land,"  its  first  care 
might  be  to  consider  under  what  form  it  would  be  preferable  to  sanction  the 
obligatory  character  of  the  articles  of  this  Declaration. 


DECLARATION  RESPECTING  THE  LAWS  AND  CUSTOMS  OF 

WAR  ON  LAND 

SECTION  I. —  Belligerents 

Chapter  I. —  Qualifications  of  belligerents 
Article  1 

The  laws,  rights,  and  duties  of  war  apply  not  only  to  armies,  but  also  to 
militia  and  volunteer  corps   fulfilling  the   following  conditions: 

1.  That  they  be  commanded  by  a  person  responsible  for  his  subordinates; 

2.  That  they  have  a  fixed  distinctive  emblem  recognizable  at  a  distance ; 

3.  That  they  carry  arms  openly;  and 

4.  That  they  conduct  their  operations   in   accordance   with  the   laws   and 
customs  of  war. 

'[39]   In  countries  where  militia  or  volunteer  corps  constitute  the  army,  or  form 
part  of  it,  they  are  included  under  the  denomination  "  army." 


FOURTH  MEETING,  JULY  5,  1899:  ANNEX  435. 

Article  2 

The  population  of  a  territory  which  has  not  been  occupied  who,  on  the 
approach  of  the  enemy,  spontaneously  take  up  arms  to  resist  the  invading  troops 
without  having  had  time  to  organize  themselves  in  accordance  with  Article  1, 
shall  be  regarded  as  belligerents  if  they  respect  the  laws  and  customs  of  war. 

Article  3 

The  armed  forces  of  the  belligerent  parties  may  consist  of  combatants  and 
noncombatants.  In  case  of  capture  by  the  enemy,  both  have  a  right  to  be 
treated  as  prisoners  of  war. 

Chapter  II. —  Prisoners  of  war 
Article  4 

Prisoners  of  war  are  in  the  power  of  the  hostile  Government,  but  not  in 
that  of  the  individuals  or  corps  who  captured  them. 

They  must  be  humanely  treated. 

All  their  personal  belongings,  except  arms,  horses,  and  military  papers,  re- 
main their  property. 

Article  5 

Prisoners  of  war  may  be  interned  in  a  town,  fortress,  camp,  or  other  place, 
under  obligation  not  to  go  beyond  certain  fixed  limits;  but  they  can  only  be 
placed  in  confinement  as  an  indispensable  measure  of  safety. 

Article  6 

The  State  may  utilize  the  labor  of  prisoners  of  war  according  to  their  rank 
and  aptitude.  The  tasks  shall  not  be  excessive  and  shall  have  no  connection 
with  the  operations  of  the  war. 

Prisoners  may  be  authorized  to  work  for  the  public  service,  for  private 
persons,  or  on  their  own  account. 

Work  done  for  the  State  is  paid  for  at  the  rates  in  force  for  work  of  a 
similar  kind  done  by  soldiers  of  the  national  army. 

When  the  work  is  for  other  branches  of  the  public  service  or  for  private 
persons,  the  conditions  are  settled  in  agreement  with  the  military  authorities. 

The  wages  of  the  prisoners  shall  go  towards  improving  their  position,  and 
the  balance  shall  be  paid  them  at  the  time  of  their  release,  after  deducting  the 
cost  of  their  maintenance. 

Article  7 

The  Government  into  whose  hands  prisoners  of' war  have  fallen  is  charged 
with  their  maintenance. 

In  the  absence  of  a  special  agreement  between  the  belligerents,  prisoners  of 
war  shall  be  treated  as  regards  food,  quarters,  and  clothing,  on  the  same  footing 
as  the  troops  of  the  Government  which  has  captured  them. 

[40]  Article  8 

Prisoners  of  war  shall  be  subject  to  the  laws,  regulations,  and  orders  in 
force  in  the  army  of  the  State  in  whose  power  they  are.     Any  act  of  insub- 


436  SECOND  COMMISSION 

ordination  justifies  the  adoption  towards  them  of  such  measures  of  severity  as 
may  be  necessary. 

Escaped  prisoners  who  are  retaken  before  being  able  to  rejoin  their  army 
or  before  leaving  the  territory  occupied  by  the  army  that  captured  them  are 
liable  to  disciplinary  punishment. 

Prisoners  who,  after  succeeding  in  escaping,  are  again  taken  prisoners,  are 
not  liable  to  any  punishment  for  the  previous  flight. 

Article  9 

Every  prisoner  of  war  is  bound  to  give,  if  questioned  on  the  subject,  his 
true  name  and  rank,  and  if  he  infringes  this  rule,  he  is  liable  to  a  curtailment  of 
the  advantages  accorded  to  the  prisoners  of  war  of  his  class. 

Article  10 

Prisoners  of  war  may  be  set  at  liberty  on  parole  if  the  laws  of  their  country 
allow  it,  and,  in  such  cases,  they  are  bound,  on  their  personal  honor,  scrupulously 
to  fulfill,  both  towards  their  own  Government  and  the  Government  by  which 
they  were  made  prisoners,  the  engagements  they  have  contracted. 

In  such  cases  their  own  Government  is  bound  neither  to  require  of  nor 
accept  from  them  any  service  incompatible  with  the  parole  given. 

Article  11 

A  prisoner  of  war  cannot  be  compelled  to  accept  his  liberty  on  parole; 
similarly  the  hostile  Government  is  not  obliged  to  accede  to  the  request  of  the 
prisoner  to  be  set  at  liberty  on  parole. 

Article  12 

Any  prisoner  of  war  liberated  on  parole  and  retaken  bearing  arms  against 
the  Government  to  which  he  had  pledged  his  honor,  or  against  the  allies  of  that 
Government,  forfeits  his  right  to  be  treated  as  a  prisoner  of  war,  and  can  be 
brought  before  the  courts. 

Article  13 

Individuals  who  follow  an  army  without  directly  belonging  to  it,  such  as 
newspaper  correspondents  and  reporters,  sutlers  and  contractors,  who  fall  into 
the  enemy's  hands,  and  whom  the  latter  thinks  fit  to  detain,  are  entitled  to  be 
treated  as  prisoners  of  war,  provided  they  are  in  possession  of  a  certificate  from 
the  military  authorities  of  the  army  they  were  accompanying. 

Article  14 

An  information  bureau  relative  to  prisoners  of  war  is  instituted,  on  the 
commencement  of  hostilities,  in  each  of  the  belligerent  States  and,  when  neces- 
sary, in  neutral  countries  which  have  received  belligerents  in  their  territory. 
The  function  of  this  bureau  is  to  reply  to  all  inquiries  about  the  prisoners,  to  re- 
ceive from  the  various  services  concerned  all  the  information  necessary  to 
enable  it  to  make  out  an  individual  return  for  each  prisoner  of  war.  It  is  kept 
informed  of  internments  and  transfers,  as  well  as  of  admissions  into  hospitals 

and  deaths. 
[41]  It  is  likewise  the  function  of  the  information  bureau  to  receive  and  collect 

all  objects  of  personal  use,  valuables,  letters,  etc.,  found  on  the  field  of  battle 


FOURTH  MEETING,  JULY  5,  1899 :  ANNEX  437 

or  left  by  prisoners  who  have  died  in  hospitals  or  ambulances,  and  to  forward 
them  to  those  concerned. 

Article  15 

Relief  societies  for  prisoners  of  war,  which  are  properly  constituted  in  ac- 
cordance with  the  laws  of  their  country  and  with  the  object  of  serving  as  the 
channel  for  charitable  effort  shall  receive  from  the  belligerents,  for  themselves 
and  their  duly  accredited  agents,  every  facihty  for  the  efficient  performance  of 
their  humane  task  within  the  bounds  imposed  by  military  necessities  and  ad- 
ministrative regulations.  Agents  of  these  societies  may  be  admitted  to  the 
places  of  internment  for  the  purpose  of  distributing  relief,  as  also  to  the  halting- 
places  of  repatriated  prisoners,  if  furnished  with  a  personal  permit  by  the  military 
authorities,  and  on  giving  an  undertaking  in  writing  to  comply  with  all  measures 
of  order  and  police  which  the  latter  may  issue. 

Article  16 

Information  bureaus  enjoy  the  privilege  of  free  postage.  Letters,  money 
orders  and  valuables,  as  well  as  parcels  by  post,  intended  for  prisoners  of  war, 
or  dispatched  by  them,  shall  be  exempt  from  all  postal  duties  in  the  countries 
of  origin  and  destination,  as  well  as  in  the  countries  they  pass  through. 

Presents  and  relief  in  kind  for  prisoners  of  war  shall  be  admitted  free  of 
all  import  or  other  duties,  as  well  as  of  payments  for  carriage  by  State  railways. 

Article  17 

Officers  taken  prisoners  may  receive,  if  necessary,  the  full  pay  allowed 
them  in  this  position  by  their  country's  regulations,  the  amount  to  be  refunded 
by  their  Government. 

Article  18 

Prisoners  of  war  shall  enjoy  complete  liberty  in  the  exercise  of  their  re- 
ligion, including  attendance  at  the  services  of  whatever  church  they  may  belong 
to,  on  the  sole  condition  that  they  comply  with  the  measures  of  order  and  police 
issued  by  the  military  authorities. 

Article  19 

The  wills  of  prisoners  of  war  are  received  or  drawn  up  in  the  same  way 
as  for  soldiers  of  the  national  army. 

The  same  rules  shall  be  observed  regarding  death  certificates  as  well  as  for 
the  burial  of  prisoners  of  war,  due  regard  being  paid  to  their  grade  and  rank. 

Article  20 

After  the  conclusion  of  peace,  the  repatriation  of  prisoners  of  war  shall  be 
carried  out  as  quickly  as  possible. 


438  SECOND  COMMISSION 

Chapter  III. —  The  sick  and  wounded 
Article  21 

The  obligations  of  belligerents  with  regard  to  the  sick  and  wounded  are 
governed  by  the  Geneva  Convention  of  August  22,  1864,  subject  to  any  modifica- 
tions which  may  be  introduced  into  it. 

[42] 

SECTION  II.—  On  Hostilities 

Chapter  I. —  Means  of  injuring  the  enemy,  sieges,  and  bombardments 

Article  22 

The  right  of  belligerents  to  adopt  means  of  injuring  the  enemy  is  not  un- 
limited. 

Article  23 

In  addition  to  the  prohibitions  provided  by  special  conventions,  it  is  espe- 
cially forbidden : 

(a)  To  employ  poison  or  poisoned  weapons; 

(&)  To  kill  or  wound  treacherously  individuals  belonging  to  the  hostile 
nation  or  army ; 

(c)  To  kill  or  wound  an  enemy  who,  having  laid  down  his  arms,  or  hav- 
ing no  longer  means  of  defense,  has  surrendered  at  discretion ; 

(d)  To  declare  that  no  quarter  will  be  given ; 

(e)  To  employ  arms,  projectiles,  or  material  calculated  to  cause  unnecessary 
suffering ; 

(/)  To  make  improper  use  of  a  flag  of  truce,  of  the  national  flag,  or  of 
the  military  insignia  and  uniform  of  the  enemy,  as  well  as  the  distinctive  badges 
of  the  Geneva  Convention ; 

(g)  To  destroy  or  seize  the  enemy's  property,  unless  such  destruction  or 
seizure  be  imperatively  demanded  by  the  necessities  of  war. 

Article  24 

Ruses  of  war  and  the  employment  of  measures  necessary  for  obtaining  in- 
formation about  the  enemy  and  the  country  are  considered  permissible. 

Article  25 

It  is  forbidden  to  attack  or  bombard  towns,  villages,  dwellings  or  buildings 
that  are  not  defended. 

Article  26 

The  officer  in  command  of  an  attacking  force  must,  before  commencing  a 
bombardment,  except  in  cases  of  assault,  do  all  in  his  power  to  warn  the  authori- 
ties. 

Article  27 

In  sieges  and  bombardments  all  necessary  steps  must  be  taken  to  spare,  as 


FOURTH  MEETING,  JULY  5,  1899:  ANNEX  439 

far  as  possible,  buildings  dedicated  to  religion,  art,  science,  or  charitable  purposes, 
hospitals,  and  places  where  the  sick  and  wounded  are  collected,  provided  they 
are  not  being  used  at  the  time  for  military  purposes. 

It  is  the  duty  of  the  besieged  to  indicate  the  presence  of  such  buildings  or 
places  by  distinctive  and  visible  signs,  which  shall  be  notified  to  the  enemy  be- 
forehand. 

Article  28 
It  is  forbidden  to  give  over  to  pillage  even  a  town  or  place  taken  by  storm. 

Chapter  II. —  Spies 

[43]  -     -  - 

Article  29 

A  person  can  only  be  considered  a  spy  when,  acting  clandestinely  or  on 
false  pretenses,  he  obtains  or  endeavors  to  obtain  information  in  the  zone  of 
operations  of  a  belligerent,  with  the  intention  of  communicating  it  to  the  hostile 
party. 

Thus,  soldiers  not  wearing  a  disguise  who  have  penetrated  into  the  zone 
of  operations  of  the  hostile  army,  for  the  purpose  of  obtaining  information,  are 
not  considered  spies.  Similarly,  the  following  are  not  considered  spies :  Soldiers 
-and  civilians  carrying  out  their  mission  openly,  entrusted  with  the  delivery  of 
dispatches  intended  either  for  their  own  army  or  for  the  enemy's  army.  To 
this  class  belong  likewise  persons  sent  in  balloons  for  the  purpose  of  carrying 
dispatches  and,  generally,  of  maintaining  communications  between  the  different 
parts  of  an  army  or  a  territory. 

Article  30 
A  spy  taken  in  the  act  shall  not  be  punished  without  previous  trial. 

Article  31 

A  spy  who,  after  rejoining  the  army  to  which  he  belongs,  is  subsequently 
captured  by  the  enemy,  is  treated  as  a  prisoner  of  war,  and  incurs  no  responsi- 
bility for  his  previous  acts  of  espionage. 

Chapter  III. —  Parlementaires 

Article  32 

A  person  is  regarded  as  a  parlementaire  who  has  been  authorized  by  one 
of  the  belligerents  to  enter  into  communication  with  the  other,  and  who  advances 
bearing  a  white  flag.  He  has  a  right  to  inviolability,  as  well  as  the  trumpeter, 
bugler  or  drummer,  the  flag-bearer  and  the  interpreter  who  may  accompany  him. 

Article  33 

The  commander  to  whom  a  parlementaire  is  sent  is  not  in  all  cases  obliged 
to  receive  him. 

He  may  take  all  necessary  steps  in  order  to  prevent  the  parlementaire  taking 
advantage  of  his  mission  to  obtain  information. 

In  case  of  abuse,  he  has  the  right  to  detain  the  parlementaire  temporarily. 


440  SECOND  COMMISSION 

Article  34 

The  parlementaire  loses  his  rights  of  inviolability  if  it  is  proved  in  a  clear 
and  incontestable  manner  that  he  has  taken  advantage  of  his  privileged  position 
to  provoke  or  commit  an  act  of  treason. 

Chapter  IV. —  Capitulations  , 

Article  35 

Capitulations  agreed  upon  between  the  contracting  parties  must  take  into 
account  the  rules  of  military  honor. 
[44]  Once  settled,  they  must  be  scrupulously  observed  by  both  parties. 

Chapter  V. —  Armistices 

Article  36 

An  armistice  suspends  military  operations  by  mutual  agreement  between 
the  belligerent  parties.  If  its  duration  is  not  defined,  the  belligerent  parties 
may  resume  operations  at  any  time,  provided  always  that  the  enemy  is  warned 
within  the  time  agreed  upon,  in  accordance  with  the  terms  of  the  armistice. 

Article  37 

An  armistice  may  be  general  or  local.  The  first  suspends  the  military  opera- 
tions of  the  belligerent  States  everywhere;  the  second  only  between  certain  frac- 
tions of  the  belligerent  armies  and  within  a  fixed  radius. 

Article  38 

An  armistice  must  be  notified  officially  and  in  good  time  to  the  competent 
authorities  and  to  the  troops.  Hostilities  are  suspended  immediately  after  the 
notification,  or  on  the  date  fixed. 

Article  39 

It  rests  with  contracting  parties  to  settle,  in  the  terms  of  the  armistice, 
what  communications  may  be  held  in  the  theater  of  war  with  the  populations 
and  between  them. 

Article  40 

Any  serious  violation  of  the  armistice  by  one  of  the  parties  gives  the  other 
party  the  right  of  denouncing  it,  and  even,  in  cases  of  urgency,  of  recommencing 
hostilities  immediately. 

Article  41 

A  violation  of  the  terms  of  the  armistice  by  private  persons  acting  on  their  own 
initiative  only  entitles  the  injured  party  to  demand  the  punishment  of  the  offenders 
and,  if  necessary,  compensation  for  the  losses  sustained. 


FOURTH  MEETING,  JULY  5,  1899 :  ANNEX  441 


SECTION  III. —  On  Military  Authority  over  the  Territory  of  the 

Hostile  State 

Article  42 

Territory  is  considered  occupied  when  it  is  actually  placed  under  the  au- 
thority of  the  hostile  army. 

The  occupation  extends  only  to  the  territory  where  such  authority  has  been 
established  and  can  be  exercised. 

Article  43 

The  authority  of  the  legitimate  Power  having  in  fact  passed  into  the  hands 
of  the  occupant,  the  latter  shall  take  all  the  measures  in  his  power  to  restore 
[45]   and  ensure,  as  far  as  possible,  public  order  and  safety,  while  respecting, 
unless  absolutely  prevented,  the  laws  in  force  in  the  country. 

Article  44 

It  is  forbidden  to  force  the  population  of  occupied  territory  to  take  part 
in  military  operations  against  its  own  country. 

Article  45 

It  is  forbidden  to  compel  the  population  of  occupied  territory  to  swear  al- 
legiance to  the  hostile  Power. 

Article  46 

Family  honor  and  rights,  the  lives  of  persons,  and  private  property,  as  well 
as  religious  convictions  and  practices,  must  be  respected. 
Private  property  cannot  be  confiscated. 

Article  47 
Pillage  is  formally  forbidden. 

Article  48 

If,  in  the  territory  occupied,  the  occupant  collects  the  taxes,  dues,  and  tolls 
imposed  for  the  benefit  of  the  State,  he  shall  do  so,  as  far  as  is  possible,  in  ac- 
cordance with  the  rules  of  assessment  and  incidence  in  force,  and  shall  in  con- 
sequence be  bound  to  defray  the  expenses  of  the  administration  of  the  occupied 
territory  to  the  same  extent  as  the  legitimate  Government  was  so  bound. 

Article  49 

If,  in  addition  to  the  taxes  mentioned  in  the  above  article,  the  occupant  levies 
other  money  contributions  in  the  occupied  territory,  this  shall  only  be  for  the 
needs  of  the  army  or  of  the  administration  of  the  territory  in  question. 

Article  50 

No  general  penalty,  pecuniary  or  otherwise,  shall  be  inflicted  upon  the 
population  on  account  of  the  acts  of  individuals  for  which  they  cannot  be 
regarded  as  jointly  and  severally  responsible. 


442  SECOND  COMMISSION 

Article  51 

No  contribution  shall  be  collected  except  under  a  written  order,  and  on  the 
responsibility  of  a  commander  in  chief. 

The  collection  of  said  contribution  shall  only  be  effected  as  far  as  possible 
in  accordance  with  the  rules  of  assessment  and  incidence  of  the  taxes  in  force. 

For  every  contribution  a  receipt  shall  be  given  to  the  contributors. 

Article  52 

Requisitions  in  kind  and  services  shall  not  be  demanded  from  municipalities 
or  inhabitants  except  for  the  needs  of  the  army  of  occupation.  They  shall  be 
in  proportion  to  the  resources  of  the  country,  and  of  such  a  nature  as  not  to  in- 
volve the  population  in  the  obligation  of  taking  part  in  the  operations  of  the 
war  against  their  country. 

Such  requisitions  and  services  shall  only  be  demanded  on  the  authority  of 
the  commander  in  the  locality  occupied. 

Contributions  in  kind  shall,  as  far  as  possible,  be  paid  for  in  cash;  if  not, 
a  receipt  shall  be  given. 

[46]  Article  53 

An  army  of  occupation  can  only  take  possession  of  cash,  funds,  and  realizable 
securities  which  are  strictly  the  property  of  the  State,  depots  of  arms,  means 
of  transport,  stores  and  supplies,  and,  generally,  all  movable  property  belonging 
to  the  State  which  may  be  used  for  the  operations  of  the  war. 

Railway  plant,  land  telegraphs,  telephones,  steamers  and  other  ships,  apart 
from  cases  governed  by  maritime  law,  as  well  as  depots  of  arms  and  generally 
all  kinds  of  munitions  of  war,  even  though  belonging  to  companies  or  to  private 
persons,  are  likewise  material  which  may  serve  for  military  operations,  but  they 
must  be  restored  and  compensation  fixed  when  peace  is  made. 

Article  54 

The  plant  of  railways  coming  from  neutral  States,  whether  the  property 
of  those  States  or  of  companies  or  of  private  persons,  shall  be  sent  back  to  them 
as  soon  as  possible. 

Article  55 

The  occupying  State  shall  be  regarded  only  as  administrator  and  usufruc- 
tuary of  public  buildings,  real  estate,  forests,  and  agricultural  estates  belonging 
to  the  hostile  State,  and  situated  in  the  occupied  country.  It  must  safeguard 
the  capital  of  these  properties,  and  administer  them  in  accordance  with  the  rules 
of  usufruct. 

Article  56 

The  property  of  municipalities,  that  of  institutions  dedicated  to  religion, 
charity  and  education,  the  arts  and  sciences,  even  when  State  property  shall  be 
treated  as  private  property. 

All  seizure  or  destruction  of,  or  willful  damage  to,  institutions  of  this  char- 
acter, historic  monuments,  works  of  art  and  science,  is  forbidden,  and  should 
be  made  the  subject  of  legal  proceedings. 


FOURTH  MEETING,  JULY  5,  1899:  ANNEX  443 

SECTION  IV. —  On  the  Internment  of  Belligerents  and  the  Care  of 
THE  Wounded  in  Neutral  Countries 

Article  57 

A  neutral  State  which  receives  on  its  territory  troops  belonging  to  the 
belligerent  armies  shall  intern  them,  as  far  as  possible,  at  a  distance  from  the 
theater  of  war. 

It  may  keep  them  in  camps,  and  even  confine  them  in  fortresses  or  in  places 
set  apart  for  this  purpose. 

It  shall  decide  whether  officers  can  be  left  at  liberty  on  giving  their  parole 
not  to  leave  the  neutral  territory  without  permission. 

Article  58 

In  the  absence  of  a  special  convention,  the  neutral  State  shall  supply  the 
interned  with  the  food,  clothing,  and  relief  required  by  humanity. 

At  the  conclusion  of  peace  the  expenses  caused  by  the  internment  shall  be 
made  good. 

Article  59 

A  neutral  State  may  authorize  the  passage  over  its  territory  of  wounded  or 

sick  belonging  to  the  belligerent  armies,  on  condition  that  the  trains  bringing 

[47]  them  shall  carry  neither  personnel  nor  material  of  war.     In  such  a  case, 

the  neutral  State  is  bound  to  take  whatever  measures  of  safety  and  control 

are  necessary  for  the  purpose. 

Wounded  or  sick  brought  under  these  conditions  into  neutral  territory  by 
one  of  the  belligerents,  and  belonging  to  the  hostile  party,  must  be  guarded  by 
the  neutral  State,  so  as  to  ensure  their  not  taking  part  again  in  the  operations 
of  the  war.  The  same  duty  shall  devolve  on  the  neutral  State  with  regard  to 
wounded  or  sick  of  the  other  army  who  may  be  committed  to  its  care. 

Article  60 

The  Geneva  Convention  applies  to  sick  and  wounded  interned  in  neutral 
territory. 


[48] 

FIRST   SUBCOMMISSION 
FIRST   MEETING 

MAY  25,  1899 


Mr.  Asser  presiding. 

Mr.  Asser  thanks  the  subcommission  for  having  chosen  him  as  president, 
and  he  will  count  on  its  good-will  to  aid  him  in  his  task. 

He  refers  to  the  fact  that  the  competency  of  the  subcommission  is  limited 
to  an  examination  of  Nos.  5  and  6  of  the  Mouravieff  circular,  but  that  it  should 
have  the  greatest  freedom  in  extending  its  discussion  to  all  questions  connected 
with  these  two  parts  of  the  program  outlined. 

The  President  reads  Articles  5  and  6  of  the  circular  of  December  30,  1898. 
He  opens  the  discussion  on  the  first  of  these  articles,  asking  the  subcommission 
to  answer  as  a  preliminary  the  following  questions : 

1.  Is  it  desirable  to  adapt  to  maritime  wars  the  stipulations  of  the  Geneva 
Convention  of  1864  on  the  basis  of  the  additional  articles  of  1868? 

This  principle  is  adopted  without  remarks. 

2.  Can  the  additional  articles  of  1868  be  considered  as  capable  of  constituting 
the  best  basis  for  such  adaptation  ? 

This  view  is  likewise  adopted  by  the  subcommission. 

The  President  says  that  he  will  successively  read  Articles  6  to  15  of  the 
provisions  of  October  20,  1868,  in  order  to  call  forth  discussion  on  each  of  them. 
Article  6  is  now  read: 

The  boats  which,  at  their  own  risk  and  peril,  during  and  after  an  engagement  pick  up 
the  shipwrecked  or  wounded,  or  which  having  picked  them  up,  convey  them  on  board  a 
neutral  or  hospital  ship,  shall  enjoy,  until  the  accomplishment  of  their  mission,  the  character 
of  neutrality,  as  far  as  the  circumstances  of  the  engagement  and  the  position  of  the  ships 
engaged  will  permit. 

The  appreciation  of  these  circumstances  is  entrusted  tg  the  humanity  of  all  the  com- 
batants. The  wrecked  and  wounded  thus  picked  up  and  saved  must  not  serve  again  during 
the  continuance  of  the  war. 

Commander  Scheine  thinks  that  it  will  be  necessary  to  specify  that  the  vessels 
which  are  admitted  to  the  field  of  battle  by  virtue  of  this  article  shall  not  be 
independent  of  superior  command  but  subordinate  to  the  admirals  in  chief  com- 
mand of  either  belligerent  party.  He  thinks  that  a  provision  to  this  eflfect  will 
prevent  the  invasion  of  the  field  of  battle  by  vessels  of  a  private  character. 

Mr.  Renault  says  that  in  his  opinion  the  vessels  organized  by  private  relief 
societies  ought  not  to  be  independent  in  action  but  be  attached  officially  to  one 
or  other  of  the  belligerents.  He  adds  that  from  an  international  standpoint, 
it  is  important  that  neutral  vessels  should  not  be  allowed  to  enter  the  field  of 
battle  under  the  pretext  that  they  are  covered  by  the  Red  Cross.     It  will  there- 

444 


FIRST  MEETING,  MAY  25,  1899  445 

fore  be  necessary  that  the  vessels  mentioned  in  Article  6,  in  order  to  be  entitled 
to  special  immunities,  be  placed  under  the  direct  authority  of  one  or  other  of  the 
belligerents.     Mutual  communications  might  be  made  in  order  to  notify  their 

character. 
[49]   Captain  Mahan  observes  that  the  first  requisite  for  admittance  to  the  field 
of  battle  ought  to  be  to  fly  the  flag  of  one  or  other  of  the  belligerents. 

Admiral  Pephau  adds  that  it  would  be  well  if  the  vessels  presenting  them- 
selves under  these  conditions  were  easily  recognizable  by  means  of  distinctive 
signs  such  as  a  special  painting. 

Mr.  Renault  thinks  that  the  question  of  the  flag,  as  raised  by  Mr,  Mahan, 
ought  to  come  under  the  examination  of  Article  12, 

Article  7  is  now  read: 

The  religious,  medical,  and  hospital  staff  of  any  captured  vessel  are  declared  neutral. 
On  leaving  the  vessel,  they  remove  the  articles  and  surgical  instruments  which  are  their 
private  property. 

Captain  Count  Soltyk  thinks  that  there  would  be  great  disadvantages  con- 
nected with  the  release  of  the  religious,  medical,  and  hospital  staff  of  a  captured 
ship.  He  thinks  that  the  commander  of  such  a  vessel  ought  to  be  authorized 
to  keep  this  staff  under  his  surveillance. 

Commander  Scheine  says  that  a  provision  might  be  inserted  leaving  it  to 
the  discretion  of  the  commander  in  chief  to  decide  what  measures  the  situation 
warrants  him  in  taking  in  regard  to  the  personnel  in  question. 

Mr.  Papiniu  thinks  that  a  distinction  ought  to  be  made  between  the  neu- 
trality and  the  inviolability  of  this  personnel. 

The  President  observes  that  in  his  opinion  neutrality  implies  inviolability. 

Captain  Mahan  suggests  the  fixing  of  a  period  after  which  the  medical  and 
religious  personnel  of  a  captive  vessel  ought  necessarily  to  be  released. 

The  subcommission  takes  note  of  these  various  observations. 

Article  8  is  now  read,  and  gives  rise  to  no  observations. 

The  staff  designated  in  the  preceding  article  must  continue  to  fulfill  their  functions  in 
the  captured  ship,  assisting  in  the  removal  of  the  wounded  made  by  the  victorious  party; 
they  will  then  be  at  liberty  to  return  to  their  country,  in  conformity  with  the  second  para- 
graph of  the  first  additional  article. 

The  stipulations  of  the  second  additional  article  are  applicable  to  the  pay  and  allowance 
of  the  staff. 

The  President  now  reads  Article  9. 

Military  hospital  ships  remain  subject  to  the  laws  of  war  as  regards  their  material;  they 
become  the  property  of  the  captor,  but  the  latter  cannot  divert  them  from  their  special  pur- 
pose during  the  continuance  of  the  war. 

Mr.  Renault  recalls  the  fact  that  the  questions  raised  by  this  article  stood 
in  the  way  of  ratification.     He  proposes  to  reserve  it  for  a  second  reading. 
Article  10  is  now  read : 

Any  merchantman,  to  whatever  nation  she  may  belong,  charged  exclusively  with  re- 
moval of  sick  and  wounded,  is  protected  by  neutrality,  but  the  mere  fact,  noted  on  the  ship's 
books,  of  the  vessel  having  been  visited  by  an  enemy's  cruiser,  renders  the  sick  and  wounded 
incapable  of  serving  during  the  continuance  of  the  war.    The  cruiser  shall  even  have  the 


446  SECOND  COMMISSION:  FIRST  SUBCOMMISSION 

right  of  putting  on  board  an  officer  in  order  to  accompany  the  convoy,  and  thus  verify  the 
good  faith  of  the  operation. 

If  the  merchant  ship  also  carries  a  cargo,  her  neutrality  will  still  protect  it,  provided 
that  such  cargo  is  not  of  a  nature  to  be  confiscated  by  the  belligerents. 

The  belligerents  retain  the  right  to  interdict  neutralized  vessels  from  all  communication, 
and  from  any  course  which  they  ma}'^  deem  prejudicial  to  the  secrecy  of  their  operations. 
In  urgent  cases  special  conventions  may  be  entered  into  between  commanders  in  chief,  in 
order  to  neutralize  temporarily  and  in  a  special  manner  the  vessels  intended  for  the  removal 
of  the  sick  and  wounded. 

The  President  thinks  that  the  term  "  merchantman  "  is  too  restricted.  The 
intention  is  to  indicate  all  vessels  which  are  not  war  vessels. 

Admiral  Pephau  says  that  a  merchantman  is  any  vessel  not  belonging  to  the 
State. 

Mr.  Scheine  says  that  it  ought  to  be  stipulated  that  the  fact  of  a  vessel  of 
this  nature  being  searched  by  a  hostile  cruiser  is  equivalent  to  a  capture  of  the 
sick  and  wounded  as  prisoners  of  war. 

Article  1 1  is  now  read : 

Wounded  or  sick  sailors  and  soldiers,  when  embarked,  to  whatever  nation  they  may 
belong,  shall  be  protected  and  taken  care  of  by  their  captors. 

Their  return  to  their  own  country  is  subject  to  the  provisions  of  Article  6  of  the  Con- 
vention, and  of  the  additional  Article  S. 

[50]  Mr.  Renault  says  that  this  article  can  be  criticized  both  as  to  substance 
and  form.     It  ought  to  be  made  the  subject  of  a  serious  examination  on  the 
part  of  the  subcommission. 
Article  12  is  now  read : 

The  distinctive  flag  to  be  used  with  the  national  flag,  in  order  to  indicate  any  vessel 
or  boat  which  may  claim  the  benefits  of  neutrality,  in  virtue  of  the  principles  of  this  Con- 
vention, is  a  white  flag  with  a  red  cross.  The  belligerents  may  exercise  in  this  respect  any 
mode  of  verification  which  they  may  deem  necessary. 

Military  hospital  ships  shall  be  distinguished  by  being  painted  white  outside,  with  green 
strake. 

Mr.  Scheine  asks  that  the  white  flag  with  red  cross  shall  always  appear 
underneath  the  national  flag.  In  the  second  place  he  expresses  the  wish  that  hos- 
pital ships  may  be  of  a  type  which  will  not  enable  them  to  be  transformed  so  as 
to  serve  for  war  purposes. 

Admiral  Pephau  thinks  that  the  lack  of  arms  and  war  material  on  board 
these  vessels  will  constitute  a  sufficient  guaranty,  but  it  would  be  too  much  to  re- 
quire them  to  be  constructed  after  a  certain  type. 

Such  an  obligation  would  prevent  the  utilization  of  mail  ships  owing  to  the 
ease  of  transforming  them  into  war  vessels. 

Mr.  Renault  thinks  that  the  communication  made  in  advance  to  the  bel- 
ligerents will  prevent  any  fraud. 

Mr.  Scheine  does  not  insist  on  his  proposition,  but  asks  that  note  be  taken 
thereof. 

Article  13  is  then  read: 

The  hospital  ships  which  are  equipped  at  the  expense  of  the  aid  societies,  recognized 
by  the  Governments  signing  this  Convention,  and  which  are  furnished  with  a  commission 


FIRST  MEETING,  MAY  25,  1899  447 

emanating  from  the  sovereign,  who  shall  have  given  express  authority  for  their  being  fitted 
out,  and  with  a  certificate  from  the  proper  naval  authority  that  they  have  been  placed  under 
his  control  during  their  fitting  out  and  on  their  final  departure,  and  that  they  were  then  ap- 
propriated solely  to  the  purpose  of  their  mission,  shall  be  considered  neutral,  as  well  as  the 
whole  of  their  staff.    They  shall  be  recognized  and  protected  by  the  belligerents. 

They  shall  make  themselves  known  by  hoisting,  together  with  their  national  flag,  the 
white  flag  with  a  red  cross.  The  distinctive  mark  of  their  staff,  while  performing  their 
duties,  shall  be  an  armlet  of  the  same  colors.  The  outer  painting  of  these  hospital  ships 
shall  be  white,  with  red  strake. 

These  ships  shall  bear  aid  and  assistance  to  the  wounded  and  wrecked  belligerents, 
without  distinction  of  nationality. 

They  must  take  care  not  to  interfere  in  any  way  with  the  movements  of  the  combatants. 
During  and  after  the  battle  they  must  do  their  duty  at  their  own  risk  and  peril. 

The  belligerents  shall  have  the  right  of  controlling  and  visiting  them ;  they  will  be  at 
liberty  to  refuse  their  assistance,  to  order  them  to  depart,  and  to  detain  them  if  the  exigen- 
cies of  the  case  require  such  a  step. 

The  wounded  and  wrecked  picked  up  by  these  ships  cannot  be  reclaimed  by  either  of 
the  combatants,  and  they  will  be  required  not  to  serve  during  the  continuance  of  the  war. 

The  President  thinks  that  the  observation  in  regard  to  the  necessity  for 
the  double  flag  may  also  be  applied  to  this  article. 

Mr.  Renault  says  in  this  connection  that  there  are  some  provisions  that 
ought  to  be  generalized. 

Article  14  is  now  read : 

In  naval  wars  any  strong  presumption  that  either  belligerent  takes  advantage  of  the 
benefits  of  neutrality,  with  any  other  view  than  the  interest  of  the  sick  and  wounded,  gives 
to  the  other  belligerent,  until  proof  to  the  contrary,  the  right  of  suspending  the  Convention, 
as  regards  such  belligerent. 

Should  this  presumption  become  a  certainty,  notice  may  be  given  to  such  belligerent 
that  the  Convention  is  suspended  with  regard  to  him  during  the  whole  continuance  of  the 
war. 

Mr.  Renault  says  that  this  article  will  disappear.  The  subcommission  will 
return  to  it  later  on. 

The  President  now  reads  Article  15  {The  present  act  shall  he  drawn  up 
in  a  single  original,  etc.),  and  declares  closed  the  general  and  provisional  discus- 
sion of  the  articles  submitted  to  the  examination  of  the  subcommission. 

Mr.  Odier  asks  whether  all  the  members  of  the  subcommission  are  really 
agreed  to  proceed  to  examine,  article  by  article,  the  text  intended  to  be  adapted 
to  maritime  wars. 

He  thinks  that  this  course  of  action  has  not  the  approval  of  the  representa- 
tives of  all  the  Governments. 

Mr.  Asser  says  that  the  competency  of  the  subcommission  has  been  clearly 
defined  and  he  thought  that  an  agreement  had  been  reached  on  this  point. 

Baron  von  Stengel  says  that  he  does  not  deem  it  useful  to  examine  the 

[51]   additional  articles  one  by  one,  but  thinks  it  would  be  preferable  to  refer  them 

for  study  to  a  special  conference  having  full  power  to  adopt  formal  texts. 

Mr.  Asser  recalls  the  fact  that  the  Conference  in  plenary  session  decided 
that  while  the  Commission  was  not  competent  to  revise  the  Geneva  Convention, 
it  nevertheless  had  full  latitude  to  formulate  resolutions  on  Nos.  5  and  6  of  the 
MouRAviEFF  circular.     He  does  not  believe  that  the  subcommission  can  go  to 


448  SECOND  COMMISSION:  FIRST  SUBCOMMISSION 

the  length  of  a  decision,  which  for  that  matter  the  Conference  could  revoke  if  it 
deemed  proper. 

Before  adjourning  the  meeting,  the  President  says  he  deems  it  preferable 
for  the  subcommission  to  postpone  the  appointment  of  its  reporter. 

This  motion  is  carried. 


SECOND    MEETING 

MAY  30,   1899 


Mr.  Asser  presiding. 

The  minutes  of  the  meeting  of  May  25  are  read  and  adopted. 

The  President  recalls  the  fact  that  the  subcommission  is  to  pursue,  in  regard 
to  the  various  articles  submitted  to  it,  a  discussion  in  whirh  only  personal 
opinions  are  to  be  expressed  which  by  no  means  pledge  the  respective  Govern- 
ments. 

He  says  that  after  the  tentative  exchange  of  views  which  took  place  during 
the  first  reading  of  the  additional  articles,  the  subcommission  will  be  able,  at  the 
second  reading,  to  take  up  the  examination  of  these  provisions  in  a  more  precise 
and  systematic  manner. 

He  proposes  to  group  the  different  provisions  in  categories,  on  each  of  which 
a  special  discussion  may  be  held.     The  provisions  desired  may  then  be  framed. 

Mr.  Asser  adds  that  it  would  be  advantageous,  when  these  points  were 
settled,  to  intrust  to  a  special  committee  the  task  of  drawing  up  final  propositions 
which  will  be  printed  and  distributed  among  all  members.     (Adopted.) 

Subdivision  of  subjects  into  four  groups 

The  President  suggests  the  following  subdivision  of  the  subjects  to  be 
examined : 

1st  group:  Provisions  concerning  vessels   (Articles  6,  9,  10,  12,  and  13.) 

2nd  group:  Provisions  concerning  personnel  of  every  kind  (Articles  7,  8, 
and  11.) 

3rd  group:  General  provisions  (Article  14). 

Mr.  Renault  says  that  he  fully  approves  the  order  proposed  by  the  Presi- 
dent. 

He  wishes  merely  to  observe  that  the  questions  relating  to  the  status  of  the 
sick  and  wounded  are  distributed  among  Articles  6,  8,  10,  and  13. 

It  would  therefore  be  useful  to  create  for  the  examination  of  these  questions 
a  new  group  which  might  occur  before  the  group  entitled  "  General  provisions." 

The  President  thinks  that  this  view  will  be  approved  without  any  trouble. 

It  is  therefore  agreed  that  the  third  group  shall  concern  the  wounded  and 
shipwrecked  and  the  fourth  the  general  provisions. 

Discussion  is  now  begun  on  the  first  group. 

First  group. —  VESSELS 

The  President  says  that  four  categories  should  be  distinguished  under  the 
denomination  "  vessels  "  : 

1.  Military  hospital  ships; 

449 


450  SECOND  COMMISSION:  FIRST  SUBCOMMISSION 

2.  Merchant  vessels; 
3.  Hospital  ships  equipped  at  the  expense  of  relief  societies ; 
[52]  4.  Boats  (provided  for  in  Article  6)  ; 

Mr.  Asser  asks  whether  this  distinction  ought  to  be  maintained. 

Mr.  Siegel  observes  that  in  his  opinion  a  boat  is  a  direct  appurtenance  of  a 
ship  to  which  it  belongs ;  he  thinks  that  Article  6  contemplates  likewise  boats 
which  are  disconnected  with  the  belligerent  vessels. 

Mr.  Asser  recalls  the  fact  that  the  subcommission  decided  at  its  previous 
meeting  that  in  order  to  enjoy  the  immunities  provided  in  Article  6,  boats  should 
be  obliged  to  sail  under  the  flag  of  one  or  the  other  of  the  belhgerents. 

Mr.  Siegel  says  that  in  subjecting  boats  to  this  decision  the  purpose  in  view 
is  to  facilitate  for  the  superior  commander  the  supervision  of  the  ships  admitted 
to  the  field  of  battle. 

Nevertheless  this  question  causes  some  difficulties. 

The  vessels  in  question  may  be  of  two  kinds: 

1.  Hospital  ships  equipped  at  the  expense  of  relief  societies,  recognized  and 
commissioned  by  their  Governments. 

2.  Merchant  vessels,  pleasure  and  fishing  craft,  etc.,  which  happen  to  be 
on  the  field  of  battle. 

Mr.  Siegel  is  of  opinion  that  the  former  may  be  assimilated  to  Govern- 
ment vessels  and  that  to  compel  them  to  fly  a  foreign  flag  would  be  an  act  in- 
compatible with  the  sovereignty  of  the  State  to  which  they  belong,  an  act  which 
might  be  considered  unfriendly  to  the  Power  not  favored  and  which  might  per- 
haps even  constitute  a  violation  of  strict  neutrality  for  the  benefit  of  one  of  the 
belligerents. 

If  freedom  is  granted  to  merchant  vessels  to  fly,  if  they  deem  fit,  a  foreign 
flag  together  with  the  flag  of  their  own  country,  there  would  still  remain  the  fact 
that  an  unfriendly  act  was  being  committed,  which  would  probably  increase  the 
risks  of  the  enterprise. 

Mr.  Siegel  adds  that  it  seems  to  him  useful,  under  these  circumstances,  to 
leave  to  hospital  ships  the  right  to  fly,  together  with  the  white  flag  with  red 
cross,  exclusively  their  national  flag,  adding  thereto,  if  deemed  necessary,  a  dis- 
tinctive mark  to  be  determined  upon. 

Mr.  Renault  thinks  that  the  question  might  be  reserved.  He  says  that, 
in  his  opinion,  the  method  which  ought  logically  to  be  followed  in  the  discussion 
would  be  as  follows:  We  must  first  examine  the  question  of  the  treatment  to 
be  accorded  to  each  of  the  several  categories  of  hospital  ships,  and  not  until 
we  come  to  regulating  the  details  of  the  intervention  of  neutral  vessels  will  it 
be  possible  to  examine  profitably  the  proposition  of  Mr.  Siegel. 

Mr.  Siegel  is  not  opposed  to  this  postponement,  which  is  decided  upon. 


First  category:    Article  9 

Article  9  and  the  additional  paragraph  thereof  are  now  read: 
At  the  request  of  Mr.  Scheine,  Mr.  Renault  declares  that  the  French  dele- 
gation maintains  the  terms  of  the  proposition  made  by  France  in  1869  with  the 
consent  of  the  British  Government  to  the  eflfect  that  Government  hospital  ships 
should  be  exempt  from  capture  provided  they  have  not  on  board  either  arms, 


SECOND  MEETING,  MAY  30,  1899  451 

ammunition,  or  war  material.  It  would  be  useful  to  add  to  this  provision  a 
clause  to  the  effect  that  the  existence  of  these  vessels  should  be  made  known 
officially  by  the  one  belligerent  to  the  other. 

Count  Soltyk  asks  whether  a  distinction  ought  to  be  made  between  the 
hospital  ships  referred  to  in  Article  9  and  the  floating  maritime  hospitals  contem- 
plated in  the  additional  article.     Are  these  latter  unfit   for  navigation? 

Mr.  Renault  says  it  is  desirable  to  find  a  form  of  wording  which  will  blend 
Article  9  and  its  additional  provision  in  such  a  way  as  to  take  into  account  only 
the  latter. 

The  President  says  he  is  going  to  put  to  a  vote  the  proposition  of  the 
French  delegation  together  with  the  German  amendment  relative  to  the  previous 
and  reciprocal  communication  from  one  belligerent  to  another. 

Mr.  Scheine  asks  that  the  following  proposition  be  passed  upon : 

The  combatants  shall  have  a  right  to  prohibit  these  ships  from  making 
any  communication  or  taking  any  direction,  and  even  to  stop  them,  if  they 
deem  it  necessary  in  order  to  guard  the  secrecy  of  the  war  operations. 

Mr.  Renault  and  Admiral  Pephau  are  of  opinion  that  this  proposition, 
which  may  be  applied  to  all  vessels  in  general,  might  be  given  a  place,  after  being 
properly  worded,  among  the  provisions  suggested  by  the  French  delegation. 
[53]  Mr.  Ovtchinnikow  asks  that  it  be  carefully  stipulated  that  the  vessels  con- 
templated in  the  additional  paragraph  of  Article  9  must  be  stripped  of  all 
war  material  and  shall  not  serve  either  for  reconnaissance  or  for  military  obser- 
vations. 

Admiral  Pephau  says  that  this  interpretation  naturally  arises  from  the  very 
text  of  the  article  which  states  that  the  armament  "  must  he  appropriated  to  the 
special  purpose  of  the  vessels  referred  to." 

We  might,  however,  insist  more  strongly  in  the  final  draft  on  these  vessels 
being  exclusively  hospital  in  character. 

The  President  puts  the  proposition  of  the  French  delegation  to  a  vote. 

This  proposition  is  carried  by  14  votes  to  2. 

Voting  for:  Germany,  Austria-Hungary,  Denmark,  Spain,  France,  Italy, 
Japan,  the  Netherlands,  Roumania,  Siam,  Sweden  and  Norway,  Switzerland,  and 
Turkey. 

Voting  against:     The  United  States  of  America  and  Great  Britain. 

The  President  puts  to  a  vote  the  proposition  of  Mr.  Scheine  relating  to  the 
rights  of  the  combatants  with  respect  to  the  movements  of  the  hospital  ships. 

This  proposition  is  adopted  unanimously  by  the  aforementioned  delega- 
tions, with  the  exception  of  Switzerland,  which  declared  that  it  would  abstain. 

Second  category:    Article  10 

The  President  opens  the  discussion  on  the  second  category  of  ships  and 
reads  Article  10. 

He  recalls  the  fact  that  the  British  Government  expressed  certain  doubts 
with  respect  to  the  interpretation  of  this  article  as  regards  the  cargo,  which 
doubts  ought  to  be  taken  into  account  in  the  final  draft. 

Mr.  Renault  says  that  the  obscurity  of  Article  10  is  due  to  the  fact  that 
an  attempt  was  made  to  regulate  two  absolutely  different  cases  by  means  of  one 


452  SECOND  COMMISSION:  FIRST  SUBCOMMISSION 

common  provision,  that  is,  the  case  in  which  the  evacuation  service  is  attended 
to  by  a  belHgerent  merchant  vessel  and  the  case  in  which  it  is  attended  to  by  a 
neutral  merchant  vessel. 

He  thinks  that  the  discussion  would  gain  in  clearness  if  a  distinction  were 
made  between  the  two  cases. 

Baron  von  Stengel  remarks  that  the  word  neutral  is  often  used  in  the  sense 
of  inviolable,  and  that  it  is  nevertheless  desirable  to  make  a  distinction  between 
neutrality  and  inviolability,  the  first  of  these  qualities  not  necessarily  implying 
the  second. 

Mr.  Motono  seconds  the  motion  of  Mr.  Renault  and  says  that  the  pro- 
posed distinction  should  be  made  particularly  in  case  a  merchant  vessel  belong- 
ing to  one  of  the  belligerent  parties  has  only  two  or  three  wounded  persons  on 
board.     In  this  case  the  hostile  vessel  should  not  escape  capture. 

The  President  proposes  that  the  division  suggested  by  Mr.  Renault  be 
adopted,  and  that  the  case  of  a  belligerent  merchant  vessel  be  examined 
first. 

Mr.  Renault  states  that  in  this  case  also  it  would  be  well  to  distinguish  be- 
tween vessels  laden  exclusively  with  sick  and  wounded,  which  ought  to  escape 
capture,  and  those  which,  not  fulfilling  these  conditions,  should  be  subject  to 
the  common  law. 

The  President  says  that  in  the  second  place  it  will  be  necessary  to  examine 
the  case  of  a  merchant  vessel  belonging  to  neutrals. 

Mr.  Thaulow  observes  that  it  ought  to  be  distinctly  stipulated  that  vessels 
not  exclusively  devoted  to  the  transportation  of  sick  and  wounded  would  not 
enjoy  immunity  from  capture. 

Mr.  Renault  says  that  the  subdistinction  which  he  has  just  proposed  answers 
this  very  observation. 

At  the  request  of  Messrs.  Siegel  and  Soltyk,  it  is  decided  that  the  terms 
"  sick  and  wounded  whom  it  is  engaged  in  evacuating  "  shall  be  superseded  by 
".  .  .  whom  it  is  engaged  in  transporting."     {Adopted.) 

Mr.  Renault  says  that  as  the  treatment  of  belligerent  merchant  vessels  has 
been  settled,  it  will  now  be  necessary  to  take  up  the  treatment  of  neutral  mer- 
chant vessels. 

Mr.  Asser  expresses  the  opinion  that  the  latter  are  governed  by  the  common 
law  in  this  way,  that  the  sick  and  wounded  on  board  these  neutral  vessels  are 
to  be  assimilated  to  the  cargo  and  should  consequently  be  covered  by  the  neutrality 
of  the  ship. 

Mr.  Renault  remarks  that  a  formal  rule  should  be  laid  down  in  the  case 
where  a  neutral  vessel  has  gathered  up  sick  or  wounded  of  a  belligerent. 

Strictly  speaking,  the  other  belligerent  might  complain  that  the  neutral  ves- 
[54]   sel  had  assisted  his  adversary  and  consequently  seize  it  for  violation  of  neu- 
trality.    We  are  agreed  that  this  should  not  be  so ;  but  we  must  say  so  and 
set  aside  the  common  law. 

Mr.  Asser  states  that  this  interpretation  is  agreed  upon. 

Mr.  Scheine  asks  that  it  be  understood  that  by  neutral  vessels  should 
be  meant  those  which  have  not  compromised  their  neutrality  either  by  carrying 
contraband  of  war  or  by  violating  a  blockade. 

Note  is  taken  of  this  observation. 

The  President  consults  the  subcommission  on  the  whole  set  of  propositions 


SECOND  MEETING,  MAY  30,  1899  453 

relating  to  the  second  category  (merchant  vessels),  and  states  that  there  is 
unanimous  agreement  as  to  the  various  questions. 

The  President,  passing  on  to  the  third  category,  reads  Article  13. 

Mr.  Motono  says  that  the  provisions  of  the  Geneva  Convention  of  1864 
and  the  additional  articles  of  1868  did  not  provide  for  the  case  of  the  transporta- 
tion by  sea  of  the  sick  and  wounded  of  land  armies. 

Nevertheless,  this  case  has  arisen  in  practice,  during  the  Chino-Japanese 
war,  and  it  deserves  to  be  taken  into  serious  consideration. 

Mr.  Motono  reserves  the  right  to  present  at  the  proper  time  a  proposition 
contemplating  this  special  contingency. 

Noury  Bey  declares  that  he  joins  in  this  suggestion,  the  appropriateness 
of  which  was  also  demonstrated  in  the  Greco-Turkish  war. 

Mr.  Asset  observes  that  the  modification  decided  on  in  Article  10  and  the 
substitution  of  the  word  transporting  instead  of  evacuating  to  a  certain  extent 
satisfy  the  desire  expressed  by  Mr.  Motono. 

Mr.  Motono  insists  on  the  necessity  of  inserting  a  special  clause. 

The  President  says  that  this  matter  will  be  taken  into  account  in  the  ultimate 
draft. 

Mr.  Renault  asks  to  specify  that  the  rule  with  respect  to  previous  and 
reciprocal  communication  adopted  in  regard  to  the  vessels  contemplated  in  Article 
9  shall  apply  likewise  to  the  two  categories  under  the  consideration  of  the  sub- 
commission. 

After  an  exchange  of  observations  between  Admiral  Fisher,  Mr.  Renault, 
and  Mr.  Ovtchinnikow,  the  subcommission  agrees  to  compel  neutral  hospital 
ships  intervening  on  a  field  of  battle  to  subordinate  their  action  directly  to  the 
authority  and  supervision  of  the  commanders  in  chief  of  the  belligerent  parties. 

Fourth  category:     Article  6 

The  President  reads  Article  6,  which  relates  to  the  fourth  category  of  relief 
vessels   (boats). 

Mr.  Ovtchinnikow  requests  some  explanations  on  the  exact  meaning  of  the 
term  "  boats."  He  observes  that  boats  are  of  several  kinds,  and  that  some  of 
them  may  be  provided  with  an  armament  which  makes  them  fall  under  the  law 
of  war.  He  thinks  that  it  would  be  well  to  avoid  any  confusion  by  adopting 
another  term. 

Admiral  Pephau  says  that  boats  ought  to  cease  to  be  neutral  as  soon  as 
their  reHef  mission  terminates;  he  sees  no  possible  difficulties  in  the  interpreta- 
tion of  Article  6. 

Mr.  Asser  says  that  the  drafting  committee  will  take  note  of  the  observation 
of  Mr.  Ovtchinnikow,  and  that  with  this  reservation  he  considers  the  discus- 
sion as  being  closed  regarding  the  four  categories  of  vessels  which  were  to  be 
examined. 

Question  of  the  Hag 

The  President  proposes  that  the  discussion  of  the  Hag  question  be  now 
taken  up. 

He  recalls  the  fact  that  the  subcommission,  at  its  previous  meeting,  had 
decided   that   all   vessels   claiming   the   immunities   provided   in   the   additional 


454  SECOND  COMMISSION:  FIRST  SUBCOMMISSION 

articles  would  have  to  sail  under  the  flag  of  one  or  the  other  of  the  belligerents. 
Mr.  SiEGEL  thought  that  this  provision  would  interfere  with  the  sovereignty  of 
the  States  to  which  these  vessels  belong  and  might  even  constitute  a  violation 
of  strict  neutrality  for  the  benefit  of  one  of  the  belligerents.  He  consequently 
asked  that  the  flag  of  the  Red  Cross  and  that  of  the  belligerent  State  to  which 
the  relief  vessel  is  attached  —  three  different  flags  —  be  shown  simultaneously. 

Does  the  delegate  from  Germany  insist  on  his  proposition? 
Mr.  Siegel  declares  that  he  maintains  it. 
[55]  After  an  exchange  of  observations  participated  in  by  Messrs.  Scheine, 
MoTONo,  Mahan,  Pephau,  Fisher,  and  Soltyk,  it  is  understood  that  a  pre- 
cise text  will  be  submitted  on  this  question  to  the  subcommission  at  its  next 
meeting. 

Noury  Bey  wishes  to  declare  that  whenever  Turkish  relief  ships  have  to 
perform  their  mission,  the  emblem  of  the  Red  Cross  will  be  replaced  on  their 
special  flag  by  the  Red  Crescent. 

The  subcommission  takes  note  of  this  declaration. 

The  President  proposes  that  a  committee  of  four  members  be  designated, 
to  which  will  be  intrusted  the  task  of  preparing  the  final  draft  of  the  propositions 
which  have  been  subjected  to  discussion. 

This  committee  will  be  composed  of  Admiral  Fisher,  Commander  Siegel, 
Commander  Scheine,  and  Professor  Renault. 

This  motion  is  carried  and  the  meeting  adjourns  until  Thursday,  June  1, 
at  10  o'clock. 


THIRD    MEETING 

JUNE  1,  1899 


Mr.  Asser  presiding. 

The  minutes  of  the  second  meeting  are  read  and  adopted. 

Mr.  Asser  recalls  the  fact  that  at  the  end  of  the  preceding  meeting  the 
subcommission  had  referred  the  examination  of  the  questions  relating  to  the 
flag  to  the  drafting  committee,  which  was  to  undertake  to  adopt  a  precise  form 
of  wording  on  which  an  agreement  might  be  reached. 

As  this  committee  will  probably  bring  in  a  proposition  on  this  question 
which  will  receive  all  the  votes,  Mr.  Asser  thinks  that  it  will  be  better  to  post- 
pone the  vote  until  a  subsequent  meeting.     (Adopted.) 

The  President  says  that  as  the  subcommission  has  terminated  the  ex- 
amination on  second  reading  of  the  first  group  of  subjects,  it  will  pass  to  the 
second  group  (medical,  religious,  and  sanitary  personnel,  etc..  Articles  7S). 

The  President  reads  Article  7. 

He  reads  an  extract  from  a  work  by  Mr.  Paul  Fauchille,  director  of  the 
Revue  gencrale  de  droit  international  public.  (Relief  to  the  wounded  and  ship- 
wrecked in  maritime  war.) 

As  no  member  requests  the  floor  regarding  Article  7,  the  President  declares 
that  the  principle  embodied  in  this  article  is  adopted,  subject  to  rewording. 

The  President  now  reads  Article  8. 

Mr.  Scheine  declares  that  he  indorses  the  principle  involved  in  this  article, 
with  the  understanding,  however,  that  the  captured  personnel  shall  remain  at 
the  disposal  of  the  captor  and  will  not  be  placed  at  liberty  until  the  latter  deems 
it  possible. 

Mr.  Renault  states  that  the  subcommission  is  agreed  and  that  it  will  be  desir- 
able to  find  a  wording  for  Article  8  which  shall  be  self-sufficient  and  embody 
the  whole  solution,  without  the  necessity  of  an  additional  paragraph. 

The  President,  after  declaring  the  principle  involved  in  Article  8  to  be 
adopted,  passes  on  to  the  third  group  of  subjects  (sick,  wounded,  and  ship- 
wrecked, Articles  6-10,  11-13). 

In  regard  to  Article  11,  the  President  remarks  that  the  text  of  this  article 
makes  reference  to  Article  6,  which  lays  down  a  fundamental  principle,  to  wit, 
that  the  wounded  and  shipwrecked  gathered  up  by  relief  vessels  shall  not  be 
allowed  to  serve  again  during  the  course  of  the  war. 

Mr.  Scheine  asks  that  it  be  well  understood  that  the  sick,  wounded,  and 
shipwrecked  shall  become  prisoners  of  war  by  virtue  of  the  sole  fact  of  the 
search,  by  a  belligerent  ship,  of  the  vessel  on  board  of  which  they  have  been 
taken.  Pie  thinks  it  would  be  well  to  lay  down  in  this  connection  a  general 
principle  to  apply  to  all  vessels,  whether  military  or  commercial. 

Mr.   Siegel   observes   that  the   wording  of  Article   10  contemplates   only 
[56]  merchant  vessels,  in  regard  to  which  it  satisfies  the  desire  expressed  by  Mr. 
Scheine. 

455 


456  SECOND  COMMISSION:  FIRST  SUBCOMMISSION 

The  President  says  that  the  question  cannot  be  put  in  connection  with 
Government  hospital  ships.  As  to  merchant  vessels,  their  status  is  regulated  by 
Article  13,  the  sixth  paragraph  of  which  contains  even  more  general  provisions 
in  their  regard  than  those  stipulated  by  Article  10. 

After  an  exchange  of  views  among  Messrs.  Scheine,  Mahan,  and  Ren- 
ault, the  President  declares  adopted  the  motion  of  Mr.  Scheine  relating  to 
the  capture  of  the  sick  and  wounded  by  virtue  of  the  fact  of  a  search  by  one  of 
the  belligerent  ships.  He  declares  the  principle  involved  in  Articles  6,  10,  11, 
and  13  adopted,  under  reservation  of  the  modifications  asked. 

Mr.  Renault  says  that  before  taking  up  the  examination  of  the  fourth  group 
of  subjects,  the  subcommission  ought  to  examine  a  case  which  was  not  foreseen 
by  the  additional  articles;  that  of  a  hospital  ship  laden  with  sick  and  wounded 
and  calling  at  a  neutral  port. 

It  may  be  asked  whether  it  has  a  right  to  deposit  these  sick  or  shipwrecked 
persons,  whether  the  neutral  may  receive  them  without  violating  his  neutrality, 
and  what  the  obligations  of  the  neutral  are  in  this  case. 

"The  subcommission  might  usefully  foresee  and  regulate  this  question,  leav- 
ing it  to  the  drafting  committee  to  draw  up  a  final  proposition  afterwards. 

At  the  invitation  of  the  President,  Mr.  Renault  recalls  the  fact  that  several 
years  ago  Captain  Houette  was  the  first  to  call  attention  to  the  aforemen- 
tioned case  and  that  he  proposed  to  regulate  it  by  means  of  the  following  pro- 
vision : 

The  belligerents  may  always  land  their  sick  and  wounded  of  any  nation- 
ality in  a  neutral  port  provided  with  adequate  hospital  establishments.  By 
virtue  of  the  fact  of  their  beingjanded,  these  sick  and  wounded  will  be  in- 
capable of  serving  again  during  the  war,  and  all  expenses  of  hospital  care 
shall  be  borne  by  the  nation  of  the  vessel  which  has  landed  them. 

Mr.  Renault  thinks  that  there  ought  to  be  added  to  this  provision  the 
obligation  on  the  part  of  the  neutral  Government  which  receives  the  wounded 
and  shipwrecked  persons  to  intern  them. 

The  President  reads  a  passage  from  the  above-cited  work  of  Mr.  Fau- 
chille,  which  applies  to  the  same  supposed  case.  He  asks  the  subcommission 
to  exchange  its  views  regarding  the  question  propounded  by  Mr.  Renault. 

Baron  von  Stengel  says  that  he  indorses  the  proposition  of  Mr.  Renault 
and  insists  that  the  neutral  Government  shall  be  obliged  to  intern  the  wounded 
persons  landed  on  its  territory. 

Mr.  Renault  does  not  think  that  they  should  take  the  trouble  to  regulate 
the  status  of  the  vessel  which  has  landed  the  wounded  persons. 

This  status  is  regulated  by  the  common  law,  but  he  is  of  opinion  that  at 
all  events  some  clear  and  simple  general  principles  should  be  laid  down  which 
actual  practice  will  attend  to  developing. 

Mr.  Motono  asks  whether  this  must  be  considered  as  an  obligation  on  the 
part  of  a  neutral  country  to  receive  the  wounded  persons  landed  on  its  territory. 

Mr.  Renault  answers  that  the  juridical  idea  which  dominates  his  proposi- 
tion is  as  follows :  that  the  neutral  country  will  not  be  violating  neutrality  by 
receiving  the  zvounded  persons.  However,  it  will  be  impossible  to  impose  on  this 
country  the  obligation  to  receive  them,  this  being  left  to  its  humane  discretion. 
As  regards  the  expenses  of  hospital  care  and  others,  they  ought  naturally  to  be 
borne  by  the  State  to  which  the  sick  and  wounded  belong. 


THIRD  MEETING,  JUNE  1,  1899  457 

The  drafting  committee  will,  at  all  events,  propose  texts  to  cover  all  these 
phases  of  the  question. 

The  President  states  that  the  subcommission  is  agreed  to  accept  the  prin- 
ciple involved  in  the  proposition  of  Mr.  Renault,  subject  to  change  in  wording. 

Mr.  AssER  now  takes  up  the  fourth  group  of  subjects  (General  Provisions), 
and  reads  Article  14. 

He  says  that  in  his  opinion  it  would  be  useless  and  even  unwise  to  maintain 
in  the  convention  the  provisions  stipulated  by  this  article,  which  might  perhaps 
be  considered  as  an  invitation  to  violate  the  convention.  The  President  there- 
fore proposes  to  abolish  Article  14. 

Captain  Bianco  sees  objections  to  abolishing  Article  14;  however,  by  reason 
of  the  guaranties  insured  by  the  wording  of  Article  13,  he  does  not  insist  on 
the  maintenance  of  Article  14. 

The  President  states  that  there  is  an  agreement  on  this  point  and  that 
his  proposal  to  abolish  Article  14  is  adopted. 

Mr.  Scheine  would  like  to  have  the  question  of  maritime  parlementaires 
-considered  by  the  subcommission. 

The  President  says  that  the  second  subcommission  intrusted  with  examin- 
[57]   ing  the  Brussels  Act  on  the  usages  of  war  is  perhaps  more  competent  to 
consider  this  question ;  he  thinks,  however,  that  it  would  be  possible  to  con- 
nect it  with  Article  6  of  the  circular  of  Count  Mouravieff. 

Mr.  Renault  is  of  opinion  that  the  status  of  parlementaires  ought  to  be 
regulated  by  the  general  law  of  maritime  war. 

As  Mr.  Scheine  insists  that  this  special  case  be  regulated  by  the  subcom- 
mission, the  President  declares  that  the  question  is  referred  to  the  drafting 
committee. 

The  President  consults  the  subcommission  as  to  whether  it  deems  it  useful 
to  draw  up  a  special  text  in  regard  to  the  application  to  shipwrecked  persons 
of  the  additional  provisions  of  the  Geneva  Convention.  He  recalls  the  fact 
Ihat  this  question  constitutes  No.  6  of  the  Mouravieff  circular. 

Mr.  Renault  is  of  opinion  that  by  laying  down  sufficiently  broad  general 
principles  to  apply  to  all  relief  ships  carrying  sick,  wounded,  and  shipwrecked 
persons,  the  subcommission  will  have  exactly  corresponded  to  the  two  points 
Nos.  5  and  6  of  the  Russian  program. 

Mr.  Scheine,  on  behalf  of  the  Russian  delegation,  declares  that  he  accepts 
this  view. 

The  President  proposes  to  pass  on  to  the  discussion  of  the  two  propositions 
which  Colonel  Gilinsky  deposited  in  the  name  of  the  Russian  Imperial  War 
Ministry  at  the  last  plenary  session  of  the  Second  Commission. 

As  Mr.  Gilinsky  is  not  present  at  the  meeting,  Mr.  Scheine  asks  that 
this  discussion  be  postponed.     (Adopted.) 

The  President  says  that  the  subcommission  ought  now  to  give  its  drafting 
committee  time  enough  to  prepare  the  text  of  the  various  propositions  which  it 
is  to  submit  to  it. 

As  soon  as  the  committee  has  finished  its  work,  the  President  will  have 
the  adopted  formulas  printed  and  distributed,  accompanied  by  the  necessary  ex- 
planations, and  he  will  call  the  subcommission  together  a  few  days  after  this 
distribution  has  been  made. 

The  meeting  adjourns. 


FOURTH   MEETING 

JUNE  13,  1899 


Mr.  Asser  presiding. 

The  minutes  of  the  third  meeting  are  read  and  adopted. 

The  President  says  that  he  has  received  from  Mr.  Paul  Fauchille,  di- 
rector of  the  Revue  generate  de  droit  international  public,  a  certain  number  of 
copies  of  the  pamphlet  of  which  a  passage  was  read  at  the  foregoing  meeting. 
This  work  is  at  the  disposal  of  the  members  of  the  subcommission  who  will 
certainly  wish  to  express  thanks  to  Mr.  Fauchille  for  this  gracious  attention. 

The  President  adds  that  before  taking  up  the  discussion  of  the  various 
articles  whose  text  is  proposed  by  the  drafting  committee  in  a  report  which  has 
been  distributed,  he  thinks  that  it  is  proper  to  thank  this  committee  for  the 
complete  and  lucid  expose  which  it  has  submitted  to  the  deliberations  of  the 
assembly. 

Mr.  Asser  says  that  he  is  happy  to  address  specially  to  Mr.  Renault,  who 
■drew  up  the  expose  accompanying  these  propositions,  warm  congratulations,  in 
which  Admiral  Fisher  has  asked  particularly  to  join.     {Applause.) 

The  President  thinks  it  is  not  necessary  to  read  the  text  itself  of  the  report 
of  the  drafting  committee  which  the  subcommission  has  before  its  eyes.  It  will 
be  well  simply  to  follow  the  same  method  of  discussion  which  has  been  adopted 
hitherto  and  to  provoke  first  of  all  an  exchange  of  general  observations  on  each 
of  the  three  groups  of  subjects  contemplated  in  the  report,  each  article  to  be 

thereupon  examined  separately. 
[58]   Mr.   Motono  expresses  the  desire  to  obtain   elucidations  on   a  question 
connected  with  the  first  group.     Article  2  provides  that :  "  hospital  ships 
equipped  wholly  or  in  part  at  the  expense  of  private  individuals  or  relief  societies, 
etc." 

It  seems  to  him  that  these  vessels  ought  not  to  be  allowed  to  carry  relief 
in  time  of  war  unless  they  belong  to  the  Red  Cross  societies.  In  Japan  particu- 
larly private  vessels  are  not  recognized  as  having  a  right  to  perform  a  relief- 
affording  mission  unless  they  are  duly  connected  with  one  of  these  societies. 

It  might  be  well  for  the  drafting  committee  to  express  itself  on  this  point. 

Mr.  Renault  answers  that  the  drafting  committee  intentionally  made  a  dis- 
tinction between  independent  vessels  and  those  fitted  out  by  the  Red  Cross.  If 
the  owner  of  a  pleasure  yacht  wishes  to  devote  this  vessel  to  hospital  service, 
there  is  no  reason  why  the  vessel  in  question,  provided  it  is  commissioned,  should 
not  enjoy  the  advantages  granted  to  hospital  ships. 

The  Government  to  which  the  yacht  belongs  may  refuse  or  accept  its  assist- 
ance. This  is  a  matter  of  internal  order  and  of  adapting  the  hospital  service 
to  the  tastes  and  rules  of  each  country. 

458 


FOURTH  MEETING,  JUNE  13,  1899  459 

Mr.  Motono  expresses  his  thanks  and  declares  himself  satisfied  with  this 
explanation. 

The  President  thinks  he  ought  to  observe  that  in  the  expose  of  grounds 
which  accompanies  the  new  wording  of  Article  3,  the  drafting  committee  ex- 
pressed the  idea  that,  in  the  case  of  vessels  having  an  official  commission,  the 
fact  of  being  incorporated  in  the  navy  of  one  of  the  belligerents  might  constitute 
a  violation  of  neutrality. 

Mr.  AssER  is  of  opinion  that  if  this  incorporation  is  the  result  of  a  con- 
ventional agreement  formally  accepted  by  the  parties,  it  would  not  constitute 
a  violation  of  neutrality. 

However,  the  other  arguments  presented  by  the  committee  in  support  of  the 
wording  of  Article  3  without  doubt  suffice  to  cause  it  to  be  adopted. 

The  President  proposes  to  open  the  discussion  on  each  of  said  articles  pro- 
posed by  the  drafting  committee,  and  he  reads  Article  1,  as  follows: 

Article  1 

Military  hospital  ships,  that  is  to  say,  ships  constructed  or  assigned  by  States  specially 
and  solely  with  a  view  to  assist  the  wounded,  sick  and  shipwrecked,  the  names  of  which 
have  been  communicated,  before  they  are  employed,  to  the  belligerent  Powers,  shall  be  re- 
spected and  cannot  be  captured  while  hostilities  last. 

These  ships,  moreover,  are  not  on  the  same  footing  as  men-of-war  as  regards  their 
stay  in  a  neutral  port. 

Mr.  Tadema  asks  whether  it  would  be  necessary  to  give  notice  to  the  neutral 
States  of  the  military  hospital  ships  of  the  belligerents,  either  by  means  of  a 
direct  communication  or  by  official  publication. 

Mr.  Renault  says  that  he  would  accept  the  idea  of  notification  by  means 
of  publication  in  the  official  gazette  of  the  belligerents. 

It  is  evident  that  it  is  to  the  interest  of  the  neutrals  to  know  of  the  existence 
of  the  military  hospital  ships,  but  the  question  becomes  important  to  them  only 
when  the  vessel  enters  a  neutral  port.  Upon  entering  this  port,  it  may  notify  its 
presence  and  the  neutral  State  will  thus  be  warned  of  the  fact.  The  final  report 
prepared  regarding  the  labors  of  the  subcommission  may,  however,  satisfy  the. 
observation  of  Mr.  Tadema  by  stating  that  it  is  to  be  desired  that  the  official 
communication  of  the  military  hospital  ships  of  the  belligerents  be  made  to  the 
neutral  States. 

Mr.  Siegel  observes  that  military  and  other  hospital  ships  appearing  in  a 
neutral  port  under  their  own  national  flag,  the  flag  of  the  Red  Cross,  and  the 
special  commission  of  the  nation  to  which  they  belong,  will  have  no  trouble 
in  proving  that  they  are  hospital  ships ;  he  therefore  sees  no  practical  utility 
in  creating  a  special  provision  for  this  case,  but  he  has  no  objection  to  the  proposi- 
tion of  Mr.  Renault. 

The  President  takes  note  of  the  observation  of  Mr.  Tadema  and  says  that 
it  will  be  taken  into  account  in  the  report  of  the  subcommission. 

Mr.  Asser  wishes  to  know  whether  it  may  be  considered  sufficient  to  com- 
municate only  the  names  of  the  military  hospital  ships,  or  whether  any  other 
statement  should  be  added. 

Admiral  Pephau  answers  that  it  will  be  sufficient  to  communicate  the  name 
with  the  nationality  of  the  ships. 


460  SECOND  COMMISSION:  FIRST  SUBCOMMISSION 

Mr.  Asser  says  that  Articles  1,  2,  and  3  provide  that  the  notification  shall 
be  made  "  before  they  are  employed!' 
[59]  This  wording  might  be  interpreted  as  meaning  that  it  would  declare  as  being 
sufficient  a  notification  made  long  before  the  opening  of  hostilities,  for  in- 
stance on  the  occasion  of  a  previous  war.  This  is  not  the  intention  of  the 
drafters.  He  therefore  proposes  to  substitute,  in  the  first  three  articles,  the 
words  "  at  the  commencement  or  during  the  course  of  hostilities,  and  in  any  case 
before  they  are  employed  "  instead  of  "  before  they  are  employed." 

Mr.  Renault  says  that  he  has  no  personal  objection  to  this  proposition, 
which  can,  he  thinks,  be  adopted. 

Admiral  Pephau  asks  that  the  question  be  clearly  defined  as  to  the  treat- 
ment to  be  granted  to  military  hospital  ships  in  regard  to  their  stay  in  a  neutral 
port. 

Mr.  Renault  says  that,  although  military  hospital  ships  are  Government 
ships  and  enjoy  extraterritoriality,  they  should  nevertheless  be  treated  differently 
from  war  vessels  with  respect  to  their  stay  in  port,  the  resupplying,  etc.  The 
report  may  give,  if  desired,  an  additional  explanation  on  this  point,  although 
it  already  contains  explanations  which  may  satisfy  the  doubts  raised. 

The  President  now  reads  Article  2,  worded  thus: 

Article  2 

Hospital  ships,  equipped  wholly  or  in  part  at  the  expense  of  private  individuals  or 
officially  recognized  relief  societies,  shall  likewise  be  respected  and  exempt  from  capture  if 
the  belligerent  Power  to  which  they  belong  has  given  them  an  official  commission  and  has 
notified  their  names  to  the  hostile  Power  before  they  are  employed. 

These  ships  shall  be  provided  with  a  certificate  from  the  competent  maritime  authorities 
declaring  that  they  have  been  under  their  control  while  fitting  out  and  on  final  departure. 

Mr.  Motono  says  that  the  document  required  by  this  article  may  be  issued  by 
the  military  authority  as  well  as  by  the  maritime  authority.  He  therefore  thinks 
that  it  would  be  well  to  use  the  words  "  competent  authorities." 

This  proposition  is  adopted. 

The  President  reads  Article  3,  as  follows : 

Article  3 

Hospital  ships  equipped  wholly  or  in  part  at  the  expense  of  private  individuals  or  of- 
ficially recognized  relief  societies  of  neutral  countries,  shall  be  respected  and  exempt  from 
capture  if  the  neutral  Power  to  which  they  belong  has  given  them  an  official  commission 
and  has  notified  their  names  to  the  belligerent  Powers  before  they  are  employed. 

The  text  of  this  article  is  adopted  without  any  observations. 
The  President  now  reads  Article  4,  as  follows : 

Article  4 

The  ships  mentioned  in  Articles  1,  2,  and  3  shall  afford  relief  and  assistance  to  the 
"wounded,  sick  and  shipwrecked  of  the  belligerents  without  distinction  of  nationality. 
The  Governments  undertake  not  to  use  these  ships  for  any  military  purpose. 
These  ships  must  in  no  wise  hamper  the  movements  of  the  combatants. 
During  and  after  an  engagement  they  will  act  at  their  own  risk  and  peril. 
The  belligerents  will  have  the  right  to  control  and  search  them ;  they  can  refuse  to 


FOURTH  MEETING,  JUNE  13,  1899  461 

help  them,  order  them  off,  make  them  take  a  certain  course,  and  put  a  commissioner  on 
board ;  they  can  even  detain  them  if  important  circumstances  require  it. 

As  far  as  possible,  the  belligerents  shall  enter  in  the  log  of  the  hospital  ships  the  orders 
which  they  give  them. 

Admiral  Pephau  asks  that,  in  paragraph  6  of  this  article,  the  words  "  livre 
de  hord"  (ship's  journal)  be  superseded  by  "journal  de  hord"  (logbook)  which 
appears  more  precise  to  him. 

This  amendment  is  adopted. 

The  President  now  reads  Article  5,  worded  as  follows: 

Article  5 

Military  hospital  ships  shall  be  distinguished  by  being  painted  white  outside  with  a 
horizontal  band  of  green  about  a  meter  and  a  half  in  breadth. 

Other  ships  shall  be  distinguished  by  being  painted  white  outside  with  a  horizontal 
band  of  red  a  meter  and  a  half  in  breadth. 

The  boats  of  the  ships  above  mentioned,  as  also  small  craft  which  may  be  used  for 
hospital  work,  shall  be  distinguished  by  similar  painting. 
1601    All  hospital  ships  shall  make  themselves  known  by  hoisting,  with  their  national  flag, 
the  white  flag  with  a  red  cross  provided  by  the  Geneva  Convention. 

The  President  recalls  the  fact  that  at  a  previous  meeting  the  subcommission 
admitted  that  as  regards  Ottoman  relief  vessels  the  Red  Crescent  should  be 
assimilated  as  an  emblem  to  the  Red  Cross. 

Mr.  Renault  says  that  in  his  opinion  it  is  not  for  the  subcommission  to  decide 
on  this  point. 

Noury  Bey  declares  that  Ottoman  war  vessels  have  always  respected  the 
emblem  of  the  Red  Cross  as  the  mark  of  the  Geneva  Convention.  He  expressed 
the  desire  that,  by  way  of  reciprocity,  the  Red  Crescent  may  be  insured  the  same 
respect  and  he  asks  that  note  be  taken  of  the  expression  of  this  desire. 

Mr.  Rolin  says  that  he  has  a  declaration  to  make,  which  also  relates  to  the 
last  paragraph  of  Article  5. 

He  states  that  the  Siamese  Government  adds  to  the  flag  of  the  Geneva  Con- 
vention, besides  the  Red  Cross,  a  sacred  emblem  of  the  Buddhist  religion,  also 
figured  in  red  and  called  "  the  flame."  The  effect  of  adding  this  emblem  is  to 
still  further  enhance  the  sacred  character  of  the  flag  prescribed  by  the  Geneva 
Convention. 

The  Siamese  Government  considers,  moreover,  that  Article  7  of  the  Geneva 
Convention,  which  prescribed  the  red  cross  on  a  white  background,  does  not  op- 
pose this  addition  and  the  intention  of  this  Government  will  no  doubt  be  to  apply 
in  this  manner  the  final  paragraph  of  Article  5  as  proposed. 

Mr.  RoLix  confines  himself  to  asking  that  note  be  taken  of  his  declaration. 

The  President  says  that  the  declarations  of  the  delegates  from  Turkey  and 
Siam  will  be  entered  in  the  minutes. 

Mr.  Mahan  observes  that  the  emblem  of  the  Red  Cross  is  religious  in 
character,  appealing  particularly  to  Christian  nations,  and  he  thinks  that  there 
would  be  advantage  in  adopting  another  which  would  be  recognized  by  all. 

The  President  answers  that  he  can  take  note  of  the  expression  of  this 
desire  on  the  part  of  Mr.  Mahan,  but  that  the  subcommission  is  not  competent 
to  consider  a  proposition  which  would  tend  to  revise  a  clause  of  the  Geneva 
Convention. 


462  SECOND  COMMISSION:  FIRST  SUBCOMMISSION 

Mr.  Motono  asks  that  in  paragraph  2  of  Article  5  the  words  "  other  ships  " 
be  superseded  by  the  more  precise  ones  "  the  ships  mentioned  in  Articles  2  and 
3." 

Mr.  Renault  says  that  as  far  as  he  is  concerned  he  has  no  objection  to  this 
modification. 

Mr,  Motono  asks  whether,  in  compelling  the  vessels  referred  to  in  para- 
graph 3  of  Article  5  to  wear  a  special  coat  of  paint  before  being  put  to  any  use, 
it  is  intended  to  specify  that  they  must  not  in  any  case  or  at  any  time  be  devoted 
to  any  other  use. 

Mr.  Renault  answers  that  such  is  in  reality  the  idea  which  it  was  intended 
to  express. 

Article  5  is  adopted  under  reservation  of  the  several  observations  indicated 
above. 

The  President  reads  Article  6,  as  follows : 

Article  6 

Neutral  merchantmen,  yachts,  or  vessels  having  on  board  sick,  wounded,  or  ship- 
wrecked of  the  belligerents  cannot  be  captured  for  so  doing,  but  they  are  liable  to  capture 
for  any  violation  of  neutrality  which  they  have  committed. 

Mr,  Renault  proposes  to  supersede  the  words  "  they  have  committed "  at 
the  end  of  this  article  by  the  words  "  they  may  have  committed,"  these  latter 
words  not  implying  the  idea  that  the  vessels  in  question  have  necessarily  engaged 
in  acts  of  violation  of  neutrality. 

This  modification  is  adopted. 

Mr.  Mahan  says  that  none  of  the  articles  provide  for  the  case  of  com- 
batants shipwrecked  as  a  result  of  a  naval  battle  and  who,  under  these  circum- 
stances, are  taken  in  by  a  neutral  vessel  other  than  a  hospital  ship.  Mr.  Mahan 
proposes  that  a  special  rule  be  inserted  on  this  subject  and  he  reserves  the  right 
to  frame  it  for  the  drafting  committee. 

Mr,  Scheine  observes  that  as  the  proposition  of  Mr.  Mahan  has  not  been 
made  the  subject  of  any  general  exchange  of  views  in  the  subcommission,  the 
drafting  committee  might  experience  some  trouble  in  finding  a  form  of  wording 
which  would  answer  the  general  sentiment. 

The  President  proposes  to  continue  before  anything  else  the  examination 
of  the  articles  proposed,  and  he  reads  Article  7,  thus  worded: 

Article  7 

[61]  The  religious,  medical,  and  hospital  staff  of  any  captured  vessel  is  inviolable  and  its 
members  cannot  be  made  prisoners  of  war.  On  leaving  the  ship  they  take  with  them 
the  objects  and  instruments  which  are  their  own  private  property. 

The  staff  shall  continue  to  discharge  its  duties  while  necessary,  and  can  afterwards 
leave  when  the  commander  in  chief  considers  it  possible. 

The  belligerents  must  guarantee  to  the  said  staff  when  it  has  fallen  into  their  hands 
the  enjoyment  of  their  salaries  intact. 

Mr.  Motono  asks  whether  the  pay  referred  to  in  this  article  and  attributed 
to  the  religious,  medical,  and  hospital  personnel  is  the-pay  allowed  by  the  State 
to  which  the  personnel  belongs.  He  thinks  that  it  might  be  stated  that  it  is  a 
question  here  of  the  pay  allowed  in  the  army  and  navy  of  the  captor  Government. 

Mr.  Renault  sees  objections  to  adopting  this  form  of  wording,  which  would 


FOURTH  MEETING,  JUNE  13,  1899  463 

in  some  cases  render  the  interested  personnel  liable  not  to  receive  any  pay  at  all. 
As  for  the  wording  proposed  by  the  committee,  it  does  no  more  than  reproduce 
the  text  of  1868. 

As  no  member  seconds  the  motion  of  Mr.  Motono,  the  President  now 
reads  Article  8,  as  follows : 

Article  8 

Sailors  and  soldiers  on  board  when  sick  or  wounded,  to  whatever  nation  they  belong, 
shall  be  protected  and  tended  by  the  captors. 

Mr.  Motono  recalls  the  fact  that  at  a  previous  meeting  he  set  forth  the 
views  of  his  Government  in  regard  to  the  special  case  of  the  transportation  by 
sea  of  the  sick  and  wounded  of  land  armies.  He  thanks  the  drafting  committee 
for  the  precision  with  which  it  transcribed  these  ideas,  and  he  requests  the 
insertion  in  the  minutes  of  this  meeting  of  the  passage  of  the  report  relative  to 
this  question  and  worded  as  follows: 

In  the  provisions  which  the  committee  submits  to  the  subcommission 
-mention  is  made  of  sick,  wounded,  and  shipwrecked  persons,  and  not  of  the 
victims  of  maritime  war.  This  latter  expression,  while  correct  in  most  cases, 
would  not  always  be  so  and  ought  therefore  to  be  discarded.  The  rules 
provided  are  appHcable  whenever  there  are  sick  and  wounded  on  board 
of  seagoing  vessels,  without  the  necessity  of  inquiring  whether  the  wound 
has  been  inflicted  or  the  disease  contracted  on  land  or  sea.  Consequently,  if 
a  vessel  is  devoted  to  the  transportation  by  sea  of  the  sick  and  wounded  of  a 
land  army,  this  vessel  and  these  sick  and  wounded  will  be  governed  by  the 
provisions  of  our  draft.  Inversely,  it  is  very  evident  that  if  sick  or  wounded 
seamen  are  landed  and  placed  in  an  ambulance  or  hospital,  the  Geneva  Con- 
vention will  be  fully  applicable  in  their  regard. 

This  remark  appears  to  us  sufficient  to  satisfy  the  observations  made  in 
the  subcommission,  and  we  by  no  means  deem  it  necessary  to  insert  a  special 
provision  in  this  regard. 

The  President  says  that  due  account  will  be  taken  of  the  request  of  Mr. 
Motono,  and  declares  Article  8  adopted. 
He  now  reads  Article  9,  worded  thus : 

Article  9 

The  shipwrecked,  wounded  or  sick  of  one  of  the  belligerents  who  fall  into  the  power 
of  the  other  are  prisoners  of  war.  The  victor  must  decide,  according  to  circumstances, 
whether  to  keep  them,  send  them  to  a  port  of  his  own  country,  a  neutral  port,  or  even  to  an 
enemy  port.  In  this  last  case  prisoners  thus  repatriated  cannot  serve  again  while  the  war 
lasts. 

Mr.  AssER  asks  that  the  word  "  victor "  be  omitted.  The  word  "'  captor  " 
might  perhaps  be  substituted  in  its  stead. 

Mr.  Renault  explains  that  the  reason  why  the  committee  adopted  this  word 
was  because  it  could  not  find  any  more  satisfactory  one. 

In  his  opinion  the  victor  is  the  belligerent  who  happens,  through  the  cir- 
cumstances of  the  war,  to  have  the  right  and  authority  of  the  stronger  with 
respect  to  the  hospital  ship  which  he  meets. 

He  cannot  be  called  the  captor,  since  he  has  not  the  power  to  capture. 

The   President   suggests   the   following   wording :   "  Prisoners   of   war   are 


.464  SECOND  COMMISSION:  FIRST  SUBCOMMISSION 

the  shipwrecked,  wounded  or  sick  of  one  of  the  belligerents  who  fall  into  the 
power  of  the  other.     The  latter  must  decide,  etc." 

This  amendment  is  adopted. 
[62]   Mr.  Motono  asks  whether,  in  stating  that  "prisoners  thus  repatriated  can- 
not serve  again  while  the  war  lasts,"  it  was  meant  to  refer  only  to  war 
service  and  not  such  as  might  be  performed  by  these  prisoners  in  offices,  ambu- 
lances, etc. 

Mr.  Renault  says  that  the  traditional  expression  was  used,  which,  in  his 
opinion,  refers  solely  to  service  as  a  combatant. 

Mr.  Motono  observes  that  other  kinds  of  services  should  nevertheless  be 
provided  for,  and  he  asks  that  note  be  taken  of  his  question. 

Mr.  Rolin  supports  the  view  of  Mr.  Motono  and  recalls  the  fact  that 
Article  6,  paragraph  3,  of  the  Geneva  Convention  of  1864  contains  the  wording 
take  up  arms  again,  which  appears  to  him  more  precise  than  the  word  serve, 
as  adopted  by  the  drafting  committee.  He  adds  that,  moreover,  the  third  sentence 
of  Article  9  proposed  does  not  seem  to  be  of  any  practical  utility,  and  asks  that 
it  be  simply  omitted. 

Mr.  Motono  indorses  this  proposition  and,  in  case  it  is  not  adopted,  he  asks 
subsidiarily  that  the  subcommission  substitute  the  words  take  up  arms  again, 
as  adopted  in  1864,  instead  of  serve. 

After  an  exchange  of  views  among  Messrs,  Rolin,  Renault,  and  Mahan 
as  to  what  advantages  or  disadvantages  the  omission  of  the  last  sentence  of 
Article  9  might  have  from  the  humane  and  practical  standpoint  of  the  treatment 
of  the  sick  and  wounded  who  are  prisoners  of  war,  the  President  submits  the 
proposition  of  Mr.  Rolin  to  a  vote  by  roll-call. 

Voting  for  omission :     Belgium,  China,  Japan,  and  Siam. 

Voting  against:  Germany,  the  United  States  of  America,  Austria-Hungary, 
Denmark,  Spain,  France,  Great  Britain,  Italy,  the  Netherlands,  Portugal,  Rou- 
mania,  Russia,  Serbia,  Sweden  and  Norway,  and  Turkey. 

Not  voting:     Switzerland. 

The  President  says  that  by  a  vote  of  15  for  and  4  against,  with  one  ab- 
stention, the  subcommission  has  decided  to  maintain  the  last  sentence  of  Article  9. 

He  puts  to  a  vote  the  subsidiary  proposition  of  Mr.  Motono  relative  to  the 
substitution  of  the  words  take  up  arms  again  in  lieu  of  the  word  serve. 

Before  the  vote  is  taken,  Mr.  Siegel  declares  that  he  is  in  favor  of  preserving 
the  present  wording. 

Voting  for  maintenance  of  present  wording:  Germany,  Austria-Hungary, 
China,  Denmark,  Spain,  Great  Britain,  Italy,  Netherlands,  Portugal,  Russia, 
Sweden  and  Norway. 

Voting  against:  The  United  States  of  America,  Belgium,  France,  Japan, 
Roumania,  Serbia,  Siam,  and  Turkey. 

Not  voting:     Switzerland. 

The  President  states  that  the  subcommission  has  thus  decided  by  a  vote 
of  11  for  and  8  against,  with  one  abstention,  not  to  adopt  the  proposition  formu- 
lated by  Mr.  Motono,  which,  however,  he  hopes  will  be  taken  into  account  at 
the  time  of  the  revision  of  the  Geneva  Convention. 

Mr.  Mahan  calls  the  attention  of  the  subcommission  to  the  case  in  which 
the  prisoners  referred  to  in  Article  9  have  been  exchanged. 

Mr.  Asser  says  that  it  would  be  well  if  account  were  taken  of  this  con- 
tingency in  the  report. 


FOURTH  MEETING,  JUNE  13,  1899  465 

The  President  declares  Article  9  to  be  adopted  under  reservation  of  the 
amendment  voted  on,  and  he  reads  Article  10,  worded  thus : 

Article  10 

The  shipwrecked,  wounded,  or  sick  who  are  landed  at  a  neutral  port,  with  the  consent 
of  the  local  authorities,  must  be  guarded  there  by  the  latter,  so  as  to  prevent  their  again 
taking  part  in  the  operations  of  the  war. 

The  expenses  of  tending  them  in  hospital  and  interning  them  shall  be  borne  by  the 
State  to  which  the  shipwrecked,  wounded,  or  sick  belong. 

Count  de  Grelle  Rogier  observes  that  the  text  of  this  article  is  in  con- 
tradiction with  the  provision  which  was  adopted  by  the  second  subcommission  at 
the  initiative  of  his  Excellency  Mr.  Beernaert  and  General  Mounier. 

The  provision  referred  to  is  found  in  Article  55  of  the  Brussels  Declaration, 
worded  as  follows : 

Article  55 

A  neutral  State  may  authorize  the  passage  over  its  territory  of  the 
wounded  or  sick  belonging  to  the  belligerent  armies,  on  condition  that  the 
trains  bringing  them  shall  carry  neither  personnel  nor  material  of  war. 
In  such  a  case,  the  neutral  State  is  bound  to  take  whatever  measures  of 
safety  and  control  are  necessary  for  this  purpose. 

Once  they  are  admitted  to  the  neutral  territory,  the  sick  or  wounded 
shall  not  be  returned  to  any  but  their  country  of  origin. 

[63]  Count  de  Grelle  Rogier  thinks  that  this  provision,  in  connection  with  Arti- 
cle 10  as  proposed,  would  stipulate  a  difference  of  treatment  for  the  sick 
and  wounded  which  could  not  be  justified.  As  a  matter  of  fact,  by  virtue  of 
the  first  text  these  sick  and  wounded  might  be  set  free,  while  according  to  the 
other  they  might  be  held  as  prisoners  of  war. 

He  considers  it  too  severe,  moreover,  to  compel  a  neutral  State  to  receive, 
afford  hospital  care  to,  and  intern  the  sick  and  wounded  whom  it  might  suit 
a  belligerent  to  dump  on  its  territory.  He  therefore  proposes  that  Article  10 
be  modified  as  follows  : 

Shipwrecked,  wounded,  or  sick  persons  landed  in  a  neutral  port  with  the 
consent  of  the  local  authority  may  be  returned  only  to  their  country  of  origin. 
The  expenses  of  hospital  care  shall  be  borne  by  the  State  to  which  the  sick, 
wounded,  or  shipwrecked  persons  belong. 

Mr.  Renault  says  that  the  drafting  committee  framed  Article  10  in  a  dis- 
tinct manner  and  without  seeking  to  establish  a  comparison  with  the  provisions 
adopted  by  the  second  subcommission.  The  difference  of  treatment  pointed 
out  by  Mr.  de  Grelle  Rogier  is  evident,  but  it  may  depend  on  a  difference 
of  situation.  There  are  cases  when  it  ought  to  be  possible  to  permit  the  landing 
of  sick  and  wounded,  and  those  cases  are  generally  more  urgent  in  naval  than 
in  land  warfare.  Moreover,  it  must  not  be  forgotten  that  the  subcommission  has 
to  contemplate  a  case  with  which  the  Brussels  Act  did  not  have  to  concern  itself, 
viz.,  that  of  the  shipwrecked.  If  they  are  not  sick  or  wounded  and  are  landed 
in  a  neutral  port,  the  latter  ought  to  be  obliged  to  keep  them.  To  sum  up.  Article 
55  could  not  be  applied  to  all  the  possible  cases  of  maritime  war. 

Mr.  Rolin  thinks  that,  independently  of  the  cases  already  provided  for  in 


466  SECOND  COMMISSION:  FIRST  SUBCOMMISSION 

Article  10,  it  is  necessary  to  contemplate  that  of  the  mere  passage  of  sick  and 
wounded  over  neutral  territory,  and  he  defines  the  rights  and  obligations  of 
neutrals  in  this  case.  It  may  be  admitted  that  a  neutral  State  may  permit  its 
territory  to  be  used  in  order  to  bring  sick  and  wounded  soldiers  back  to  their 
own  country  but  it  would  be  violating  the  duties  of  its  neutrality  if  it  permitted 
them  to  be  led  across  the  neutral  territory  into  a  country  where  they  would 
become  prisoners  of  war.  Mr.  Rolin  consequently  proposes,  in  order  to  main- 
tain harmony  between  Article  55  of  the  Regulations  on  land  warfare  and  the 
present  Article  10,  that  a  paragraph  be  added  to  said  article  as  follows: 

Once  they  are  admitted  to  neutral  territory,  the  shipwrecked,  sick  and 
wounded  persons  shall  not  be  returned  to  any  but  their  country  of  origin. 

Mr.  Rolin  thinks  that  by  the  adoption  of  this  additional  provision  due 
account  would  be  taken  at  the  same  time  of  the  observation  of  Mr.  de  Grelle 

ROGIER. 

The  President  suggests  that  these  various  propositions  be  referred  for  study 
to  the  drafting  committee,  which  will  endeavor  to  harmonize  as  far  as  possible 
Article  10  with  Articles  53  and  55  of  the  Brussels  Act.  He  says  that  at  the 
next  meeting,  set  for  Thursday  morning,  the  drafting  committee  will  bring  the 
final  texts,  which,  if  adopted,  will  enable  the  work  of  the  subcommission  to  be 
embodied  in  a  draft  convention  which  will  be  absolutely  complete  and  ready 
to  be  put  into  practice  if  circumstances  require. 

The  meeting  adjourns. 


FIFTH   MEETING 

JUNE  15,  1899 


Mr,  Asser  presiding. 

The  minutes  of  the  fourth  meeting  are  read  and  adopted. 

The  President  states  that  he  has  received  from  its  author  a  recent  publica- 
tion which  Mr.  Ferguson,  former  minister  resident  of  the  Netherlands  in  China, 
has  just  published  on  the  subjects  which  have  occupied  the  Conference  and  in  par- 
ticular those  relating  to  the  adaptation  of  the  principles  of  the  Geneva  Convention 

to  maritime  war. 
[64]  Mr.  Asser  commends  this  work  to  the  attention  of  the  subcommission 
and  he  places  the  copy  in  his  possession  at  its  disposal. 

The  President  calls  attention  to  the  fact  that  at  the  previous  meeting 
the  subcommission  adopted  the  final  text  of  Articles  1  to  9,  and  that  the  subject- 
matter  of  Article  10  remains  to  be  passed  upon. 

He  thinks  that  it  will  be  well,  before  opening  up  the  discussion  on  this  article, 
to  ask  the  reporter  to  make  known  the  modifications  in  wording  which  he  made 
after  the  last  meeting  both  in  his  report  and  in  the  text  of  the  proposed  articles. 

Mr.  Renault  says  that  as  far  as  the  text  of  the  articles  is  concerned,  it  has 
been  amended  in  accordance  with  the  decisions  reached  by  the  subcommission. 
He  will  not  recall  these  amendments,  which  are  known,  but  he  will  indicate  only 
two  modifications,  the  initiative  in  making  which  was  taken  by  the  drafting 
committee : 

1.  In  Article  10  the  words  "  must  he  guarded  "  will  be  substituted  in  place  of 
"  must  he  guarded  there!' 

2.  In  Article  6  the  words  "or  taking  on  hoard"  (sick,  wounded,  etc.)  will 
be  added  to  the  words  "  merchantmen,  etc.,  etc.,  having  " 

As  far  as  the  report  itself  is  concerned,  Mr.  Renault  says  that  in  order  to 
take  into  account  the  wish  expressed  by  Mr.  Tadema  the  committee  decided  to 
insert  in  the  middle  of  page  3  the  following  clause : 

The  notification  of  the  names  of  military  hospital  ships  concerns  first 
of  all  the  belligerents ;  it  may  also  concern  neutrals,  for,  as  will  be  explained, 
these  vessels  acquire  a  peculiar  status  in  neutral  ports. 

It  is  therefore  to  be  desired  that  the  belligerents  make  the  names  of 
these  vessels  known  to  the  neutral  States,  even  though  it  were  only  by 
means  of  an  insertion  in  their  official  gazette. 

In  order  to  satisfy  certain  doubts  which  had  been  expressed  in  regard  to  the 
status  of  military  hospital  ships  in  neutral  ports,  the  following  clause  was  in- 
serted in  the  report  (page  4)  : 

467 


468  SECOND  COMMISSION:  FIRST  SUBCOMMISSION 

Apart  from  the  considerations  just  expressed,  military  hospital  ships 
shall  naturally  be  treated  as  war  vessels,  notably  as  regards  the  benefits  of 
extraterritoriality. 

In  order  to  satisfy  the  anxiety  expressed  by  Mr.  Mahan  in  regard  to 
Article  9,  and  in  case  the;  prisoners  contemplated  should  have  been  exchanged, 
the  report  will  contain  the  following  clause  at  the  end  of  page  9: 

The  sick  or  wounded  who  are  thus  returned  to  their  country  shall  not  be 
allowed  to  serve  again  during  the  war. 

Of  course  if  they  should  be  exchanged,  their  status  as  "  prisoners  of 
war  at  liberty  on  parole  "  shall  cease  and  they  will  recover  their  freedom  of 
action. 

The  President  says  that  the  work  of  the  drafting  committee  may  there- 
fore be  considered  as  being  complete. 

Mr.  Mahan  recalls  the  fact  that  at  the  previous  meeting  he  called  the  at- 
tention of  the  subcommission  to  the  case  of  a  neutral  ship  other  than  a  hospital 
ship,  which  had  accidentally  gathered  up  shipwrecked  combatants.  He  would 
have  liked  to  see  a  special  rule  inserted  in  the  convention  with  a  view  to  this  case. 

He  did  not  succeed  in  bringing  the  drafting  committee  around  to  this  view. 

In  a  spirit  of  conciliation,  he  does  not  think  that  he  will  have  to  insist  on 
his  proposition,  and  he  is  ready  to  advise  his  Government  to  accept  the  text  of 
the  articles  which  have  been  proposed.  He  nevertheless  persists  in  thinking^ 
that  it  would  have  been  well  to  fill  the  void  which  he  pointed  out. 

The  President  and  Mr.  Renault  remind  Mr.  Mahan  that  Article  6  has 
been  supplemented  by  a  clause  the  very  purpose  of  which  was  to  meet  his  ob- 
servation. 

Mr.  Mahan  answers  that  it  seems  to  him  that  the  change  introduced  related 
to  the  status  of  neutral  ships  but  not  to  that  of  the  shipwrecked  persons  gathered 
up.     However,  he  declares  again  that  he  does  not  insist  on  his  proposition. 

Mr.  Motono  makes  the  following  declaration  in  connection  with  Article  9: 

The  provisions  of  the  last  paragraph  of  Article  6  of  the  Geneva  Convention 
of  1864  and  those  of  Article  9  of  the  draft  under  discussion  are  contradictory. 

In  the  former,  the  sick  and  wounded  are  covered  by  neutrality,  whereas  in 
the  latter  they  are  treated  as  prisoners  of  war. 

Considering  the  provisions  of  Article  9  of  the  present  draft  more  in  ac- 
cordance with  the  laws  of  war,  we  wished  to  modify  the  provisions  of  Article 
6  of  the  Convention  of  1864  along  the  lines  of  Article  9,  for  the  purpose  of 

bringing  into  harmony  the  provisions  of  the  aforementioned  articles. 
[65]  We  must  add  further  that  in  case  the  two  aforementioned  provisions  should 
remain  unmodified,  insular  Powers  like  Japan  would  be  in  a  manifestly 
disadvantageous  situation  with  respect  to  the  continental  Powers. 

Consequently,  if  our  subcommission  is  competent  to  modify  Article  6  of  the 
Geneva  Convention  of  1864,  we  propose  to  submit  to  its  examination  an  amend- 
ment along  the  lines  indicated. 

In  case  our  subcommission  should  declare  itself  incompetent,  we  reserve 
the  right  to  propose  this  amendment  upon  the  first  favorable  opportunity. 

We  have  the  honor  to  request  the  President  to  mention  the  present  declara- 
tion in  the  minutes. 

The  President  says  that  this  will  be  done. 


FIFTH  MEETING,  JUNE  15,  1899  469 

He  proposes  to  go  on  to  Article  10,  and  reads  it : 

Article  10 

The  shipwrecked,  wounded,  or  sick  who  are  landed  at  a  neutral  port  with  the  consent 
of  the  local  authorities,  must  be  guarded  by  the  latter  so  as  to  prevent  their  again  taking 
part  in  the  operations  of  the  war. 

The  expenses  of  hospital  care  and  internment  shall  be  borne  by  the  State  to  which  the 
sick,  wounded,  and  shipwrecked  persons  belong. 

The  President  recalls  the  fact  that  the  wording  of  this  article  was  the  sub- 
ject of  propositions  and  amendments  presented  by  Count  de  Grelle  Rogier  and 
Mr.  RoLiN. 

He  asks  the  reporter  to  state  the  views  of  the  drafting  committee  on  this 
subject. 

Mr.  Renault  says  that  the  committee  examined  at  length  and  conscientiously 
Article  10  which  was  referred  to  it  together  with  the  aforementioned  amend- 
ments, and  that  as  a  result  of  this  examination  it  was  led  to  unanimously  main- 
tain the  text  which  it  had  proposed  before. 

It  seemed  to  it  that  the  subcommission  had  no  business  to  combine  Article 
10  with  Articles  53  and  55  of  the  Brussels  Declaration. 

As  a  matter  of  ^f act  these  texts  provide  for  two  different  situations  which 
should  in  consequence  be  examined  and  regulated  separately.  The  rules  of  con- 
tinental war  cannot  be  applied  by  way  of  assimilation  to  maritime  war,  and 
there  are  particularly  other  things  to  be  considered  in  regulating  the  conditions  of 
access  to  a  neutral  port  than  to  neutral  territory. 

The  committee  deemed  it  necessary,  with  a  view  to  rendering  the  part  played 
by  the  neutral  as  clear  as  possible  and  to  preventing  international  difficulties,  to 
compel  him  to  keep  the  wounded,  sick,  and  shipwrecked  persons  landed  in  one 
of  his  ports.  It  will  be  permissible  for  him  not  to  admit  them,  but  once  he  has 
admitted  them  it  will  be  necessary  for  him  to  keep  guard  over  them. 

As  to  the  burdens  falling  on  the  neutral  State  on  this  account,  they  will  not 
be  so  great  as  supposed,  and  the  evacuation  of  wounded  after  a  naval  combat 
can  never  be  compared  with  the  affluence  of  wounded  which  a  land  battle  might 
bring  about  on  the  neutral  territory  situated  near  the  operations  of  the  war. 

At  all  events  the  neutral,  if  he  consents  to  receive  in  his  port  a  vessel  laden 
with  wounded,  will  be  indemnified  by  the  State  to  which  these  wounded  belong 
for  all  the  expenses  caused  by  their  hospital  care  and  internment. 

Count  de  Grelle  Rogier  does  not  very  well  understand  the  necessity  for  the 
drafting  committee's  insisting  on  the  maintenance  of  Article  10  intact. 

He  has  already  pointed  out  the  discrepancy  existing  between  Article  55  of 
the  Brussels  Act  and  this  Article  10.  Article  9  provided  much  more  advantageous 
rules.  What  the  drafting  committee  desires  is  that  the  wounded,  sick  and  ship- 
wrecked shall  be  declared  incapable  of  serving.  This  is  not  a  reason  for  keeping 
them  indefinitely  on  the  neutral  territory. 

Count  DE  Grelle  Rogier  consequently  proposes  that  Article  10  be  given 
the  following  form : 

The  shipwrecked,  wounded,  or  sick  who  are  landed  at  a  neutral  port  with 
the  consent  of  the  local  authorities  shall  not  be  sent  back  to  any  but  their 
country  of  origin  and  they  shall  in  this  case  be  declared  incapable  of  serving 
again  during  the  continuance  of  the  operations  of  the  war. 


470  SECOND  COMMISSION:  FIRST  SUBCOMMISSION 

The  expenses  of  tending  them  in  hospital  shall  be  borne  by  the  State  to 
which  they  belong. 

Mr.  Renault  remarks  that  Articles  9  and  10  should  not  be  compared.  In 
Article  9  it  is  the  belligerent  that  sends  the  sick  and  wounded  back  to  their  orig- 
inal country  on  condition  that  they  shall  not  serve  again  during  the  war.  As  to 
the  case  contemplated  in  Article  10,  it  has  not  been  admitted,  as  in  1868, 
[66]  that  in  granting  the  power  to  leave  the  sick  and  wounded  at  liberty  on 
parole  the  provision  contained  a  sufficient  guaranty. 

The  drafting  committee  insists  on  the  maintenance  of  the  text  which  it 
proposed. 

Baron  Bildt  seconds  the  motion  of  Count  de  Grelle  Rogier  on  the  score  of 
other  considerations.  It  would  be  imposing  too  onerous  a  duty  on  neutrals  to 
compel  them  to  keep  the  shipwrecked,  wounded,  and  sick  throughout  the  dura- 
tion of  the  war.  It  would  be  necessary  to  find  sufficient  guaranties  in  order  to 
demand  this  sacrifice  of  neutral  Powers. 

Mr.  Renault  having  observed  that  this  is  nevertheless  what  happens  in  a 
continental  war  when  a  beaten  army  corps  enters  neutral  territory  and  is  in- 
terned there,  Count  de  Grelle  Rogier  answers  that  it  is  then  a  question  of 
combatants. 

The  President  observes  again,  in  reply  to  Baron  Bildt,  that  the  land- 
ing in  the  neutral  port  always  depends  on  the  consent  of  the  local  authority. 

Mr.  Odier  suggests  that,  in  order  to  satisfy  Count  de  Grelle  Rogier,  they 
say  that  the  sick,  wounded,  and  shipwrecked  who  are  recognised  as  being  in- 
capable of  serving  may,  after  being  cured,  be  sent  back  to  their  country. 

Mr.  Motono  supports  the  wording  of  Mr.  Odier. 

Captain  Siegel  would  like  to  be  enlightened  as  to  how  it  will  be  possible 
to  recognize  that  the  cure  of  the  sick  and  wounded  is  effected  and  to  distinguish 
between  those  who  may  be  returned  and  those  who  ought  to  be  kept;  he  de- 
clares himself  in  favor  of  maintaining  the  text  proposed. 

Mr.  Corragioni  d'Orelli  is  of  opinion  that  the  requirement  of  Article  10 
is  excessive.  It  is  necessary  to  anticipate  the  case  of  an  epidemic  in  the  port  or 
city  of  internment,  and  allow  the  neutral  State,  for  sanitary  reasons,  the  privilege 
of  sending  the  shipwrecked,  wounded  and  sick  back  to  their  original  country, 

Mr.  Scheine  insists  on  the  difficulty  of  distinguishing  between  the  sick  who 
are  capable  of  serving  and  the  others.  It  is  not  service  as  a  combatant  alone 
that  can  be  provided  for.  Wholeness  of  limbs  is  not  necessary,  for  instance,  for 
the  service  of  semaphores,  the  adjustment  of  torpedoes,  etc. 

The  President  adds  that  it  might  be  possible  to  call  in  the  local  authorities 
of  the  country  where  the  sick  and  wounded  are  interned,  by  adding  the  words 
"  recognized  incapable  of  serving  by  the  neutral  medical  authorities." 

Mr.  Odier  states  that  this  system  is  already  put  into  practice  by  the  Geneva 
Convention,  and  he  reads  Article  6  of  that  Convention. 

Mr.  Scheine  observes  that  this  article  contemplates  land  warfare,  the  condi- 
tions of  which  are  very  different  from  those  of  naval  warfare. 

Admiral  Fisher  is  in  favor  of  maintaining  integrally  the  text  of  Article  10 
as  adopted  by  the  drafting  committee. 

Baron  Bildt  thinks  the  proposition  of  Mr.  de  Grelle  Rogier  all  the  more  ac- 
ceptable because  this  wording  proposes  for  Article  10  a  condition  which  has  been 
accepted  for  Article  9. 


FIFTH  MEETING,  JUNE  15,  1899  471 

Mr.  Scheine  is  not  of  this  opinion.  According  to  one  of  the  articles,  the 
prisoners  are  returned  at  the  will  of  the  belligerents;  according  to  the  other 
they  are  placed  in  the  hands  of  the  neutral,  who  is  less  competent  to  decide  as 
to  their  fate  than  the  belligerent. 

After  an  exchange  of  views  as  to  the  position  of  the  question,  the  President 
puts  to  a  vote  the  maintenance  of  Article  10  intact. 

Ten  States  vote  in  favor  of  such  maintenance,  viz. :  Germany,  Austria- 
Hungary,  France,  Great  Britain,  Italy,  Netherlands,  Portugal,  Roumania,  Russia, 
and  Turkey. 

The  following  voted  against  it:  The  United  States  of  America,  Belgium, 
China,  Denmark,  Spain,  Japan,  Siam,  Sweden  and  Norway,  and  Switzerland. 

The  President  states  that  the  assembly  adopts  the  whole  wording  as  pro- 
posed by  the  committee  for  Article  10. 

The  President  congratulates  the  subcommission  on  the  results  of  its  labors, 
which  may  be  considered  as  very  satisfactory. 

He  says  that  it  is  now  necessary  to  consider  the  procedure  according  to 
which  this  work  shall  be  submitted  to  the  Conference. 

Should  the  usual  course  be  followed,  that  is,  to  present  a  report  to  the  sec- 
ond plenary  Commission,  which  will  have  to  ratify  by  a  vote  the  decisions  of 
the  subcommission ;  or  will  it  be  suitable,  in  order  to  gain  time,  to  avoid  this 
formality  and  take  the  result  of  the  labors  of  the  subcommission  directly  before 
the  plenary  session  of  the  Conference? 

The  President  thinks  that  this  latter  suggestion  will  receive  all  the  votes 
and  he  asks  the  subcommission  to  give  him  formal  instructions  to  ask  the 
[67]  President  of  the  Conference  and  the  President  of  the  Second  Commission 
for  permission  to  present  to  the  Conference  the  report  of  the  subcommis- 
sion and  the  text  of  the  articles  adopted. 

Mr.  AssER  adds  that  in  his  opinion  the  vote  of  ratification  which  is  to  be 
given  by  the  Conference  ought  to  be  less  platonic  in  character  than  a  mere  vccu ; 
it  would  be  desirable,  if  possible,  to  cause  the  work  of  the  subcommission  to 
enter  without  waiting  into  the  body  of  positive  international  law  by  embodying 
it  in  a  convention.  This  convention  might  be  signed  right  at  The  Hague,  by 
the  plenipotentiaries  of  the  Powers  represented  and  under  the  same  conditions 
as  to  form,  in  regard  to  ratification  and  going  into  force,  as  those  observed  at 
the  time  of  the  conclusion  in  this  city,  on  November  14,  1896,  of  the  Convention 
on  private  international  law. 

The  Reporter  of  the  drafting  committee,  who  shares  this  view,  has  already 
prepared  the  preamble  which  is  eventually  to  precede  the  convention  and  which 
might  be  drawn  up  in  the  following  terms: 

His  Majesty  the  Emperor  of  Germany,  etc.,  etc., 

being  alike  animated  by  the  desire  of  mitigating,  as  far  as  within  their 
power,  the  incomparable  evils  of  war  by  adapting  for  this  purpose  to  mari- 
time war  the  principles  of  the  Geneva  Convention  of  August  22,  1864,  have 
resolved  to  conclude  a  convention  for  this  purpose :  etc.,  etc., 

Mr.  Motono  proposes  to  supersede  in  this  preamble  the  words  ^'adapting  to 
maritime  war  "  by  ''  supplement  the  principles  of  the  Geneva  Convention,"  which 
appear  to  him  broader  and  more  general  in  application. 

Baron  Bildt  asks  whether  any  thought  has  been  given  to  the  wording  of 


472  SECOND  COMMISSION:  FIRST  SUBCOMMISSION 

the  final  paragraph  of  the  convention  to  be  concluded,  especially  as  regards  the 
accession  clause,  the  length  of  time  permitted  for  ratification,  etc. 

Mr.  Renault  says  that  as  regards  the  preamble,  he  does  not  deem  it  well 
to  adopt  the  form  suggested  by  Mr.  Motono,  which  might  perhaps  lend  itself 
to  too  broad  a  construction. 

As  regards  the  observation  of  Baron  Bildt,  he  proposes  to  intrust  to  the 
drafting  committee  the  task  of  preparing,  in  conjunction  with  the  President, 
a  complete  diplomatic  text  and  he  asks  Baron  Bildt  to  kindly  lend  them  his 
assistance. 

Baron  Bildt  says  that  he  will  willingly  place  himself  at  the  disposal  of  the 
drafting  committee. 

Upon  an  observation  by  Admiral  Fisher,  the  President  remarks  that  the  re- 
port of  the  drafting  committee  will  have  an  interpretative  force  with  respect 
to  the  convention  similar  to  that  attributed  to  an  explanatory  statement  in  the  case 
of  a  proposed  law. 

Mr.  Corragioni  d'Orelli  calls  attention  to  the  desirability  of  having  the 
Governments  of  very  remote  countries  enabled  to  examine  and  accept  the  con- 
vention with  a  full  knowledge  of  what  they  are  doing,  and  he  asks  whether  it 
would  not  be  well  to  take  this  necessity  into  account,  either  by  leaving  the  signa- 
ture protocol  open  or  by  some  other  means. 

Noury  Bey  suggests  that  the  instrument  be  permitted  to  be  signed  "ad 
referendum,"  which  would  leave  to  the  interested  Governments  full  latitude  to 
accept  or  refuse  the  convention. 

Baron  Bildt,  seconded  by  Mr.  Corragioni  d'Orelli,  points  out  the  prac- 
tical objections  to  the  signature  of  an  act  "  ad  referendum."  He  is  of  opinion 
that  the  convention  ought  only  to  be  signed  by  the  plenipotentiaries  who  are 
authorized  to  sign  it  without  reservations.  The  other  States  will  have  a  right  to 
adhere  thereto  subsequently,  and  all  must  pledge  themselves  to  ratify  it  within 
the  shortest  possible  time.  This  latter  condition  appears  to  Baron  Bildt  indis- 
pensable in  order  to  avoid  difficulties  and  delays  in  the  ratification. 

The  President  recalls  the  fact  that  at  the  beginning  of  the  labors  of  the 
Second  Commission  a  debate  arose  as  to  whether  it  was  competent  to  revise  the 
Geneva  Convention. 

The  Commission  answered  in  the  negative.  It  would  nevertheless  be  de- 
sirable to  express  the  desire  that  the  Geneva  Convention  might  be  revised  at 
an  early  date. 

The  President  reads  the  text  of  a  va^ii  which  he  proposes  to  submit  to  the 
Conference  on  this  subject: 

The  Hague  Conference,  taking  into  consideration  the  preliminary  steps 
taken  by  the  Swiss  Federal  Government  for  the  revision  of  the  Geneva  Con- 
vention, utters  the  vo'ii  that  steps  may  be  shortly  taken  for  the  assembly  of  a 
special  conference  having  for  its  object  the  revision  of  that  Convention. 

[68]  Mr.  Scheine  asks  that  it  be  understood  that  this  revision  shall  be  made 
without  affecting  the  work  now  accomplished. 

The  President  is  of  opinion  that  it  would  be  very  useful  to  incorporate  this 
work  in  the  new  convention  and  to  combine  in  a  single  code  the  whole  set  of 
provisions  adopted  on  the  subject. 

However,  in  case  (which  God  forbid!)  a  maritime  war  should  break  out 
before  the  revision  of  the  Geneva  Convention,  it  would  be  very  desirable  to 


FIFTH  MEETING,  JUNE  15,  1899  473 

have  a  special  treaty  signed  without  waiting  until  such  revision  had  taken  place. 

]\Ir.  Renault  insists,  for  the  sake  of  the  work  accomplished  at  The  Hague, 
that  its  special  and  distinct  character  be  preserved. 

Care  should,  according  to  him,  be  taken  not  to  connect  it  at  present  with 
the  revision  of  the  Geneva  Convention,  for  by  so  doing  the  risk  would  be  run 
of  indefinitely  postponing  the  putting  into  practice  of  the  resolutions  just  adopted. 

Mr.  Odier  is  of  opinion  that  the  subcommission  is  perfectly  competent  to 
express  the  voen  proposed  by  the  President,  without  it  being  necessary  to  con- 
nect the  two  questions,  that  is,  the  convention  which  will  contain  the  work  of 
this  subcommission  and  the  vosu  to  be  expressed  in  regard  to  the  revision  of 
the  Geneva  Convention. 

General  Thaulow  joins  in  the  views  expressed  by  Mr.  Odier,  The  sub- 
commission  is  competent  to  propose  the  revision  within  the  shortest  possible  time. 

The  President,  resuming  the  discussion,  states  that  he  has  received  instruc- 
tions from  the  subcommission  to  insist  on  having  the  text  of  the  articles  voted 
for  by  the  subcommission  embodied  into  positive  law  and  to  try  to  have  a  con- 
vention signed  to  this  effect. 

Following  this  exchange  of  observations,  the  President  states  that  the 
subcommission  will  disperse  after  terminating  its  labors.  The  results  which  it 
has  accomplished  constitute  an  important  reform  in  the  interest  of  humanity. 
Ever  since  1868  the  wish  has  been  repeatedly  expressed  that  the  additional  pro- 
visions of  the  Geneva  Convention  might  be  adapted  to  maritime  war.  Thanks 
to  the  good-will  and  the  spirit  of  conciliation  shown  by  all  in  this  subcommission, 
this  wish  will  soon  be  realized,  and  we  ought  to  congratulate  ourselves  on 
having  succeeded  in  establishing  an  understanding  on  matters  of  so  high  a  humane 
interest. 

Mr.  Asser  adds  that  he  deems  it  a  duty  and  a  pleasure  to  express  thanks 
to  the  secretaries  of  the  subcommission,  who  have  shown  remarkable  zeal  and 
devotion  in  their  often  difficult  task,     (Applause.) 

Admiral  Fisher  says  that  the  subcommission  no  doubt  wishes  to  offer  an 
expression  of  its  gratitude  to  its  eminent  President,  who  has  guided  its  labors 
in  his  highly  competent  manner  and  in  a  benevolent  and  impartial  spirit  to  which 
the  assembly  is  happy  to  do  homage.     (Applause.) 

Admiral  Fisher  adds  that  he  fully  joins  in  the  thanks  which  the  President 
chose  to  express  to  the  secretaries  on  behalf  of  the  subcommission. 

The  President  says  that  he  is  deeply  touched  by  the  sentiments  just  expressed 
in  his  regard. 

His  task  has  been  rendered  easy  and  pleasant  by  the  benevolence  of  all  his 
colleagues,  and  he  is  glad  to  avail  himself  of  this  opportunity  to  thank  them 
sincerely. 

He  declares  the  meeting  adjourned. 


SECOND   SUBCOMMISSION 
FIRST   MEETING 

MAY  25,  1899 


Mr.  Martens  presiding. 

The  President  states  that  it  appears  useful  and  desirable  to  him,  in  the 
interest  of  the  labors  of  the  subcommission,  not  to  commence  the  examination 
of  the  draft  Declaration  of  Brussels  of  1874  concerning  the  laws  and  customs 
of  war  at  Article  1  but  first  to  take  into  consideration  the  provisions  containing 
the  most  generally  recognized  principles.  Accordingly  he  proposes  that  the 
articles  relating  to  prisoners  of  war  be  first  studied. 

Following  observations  by  General  Mounier  and  his  Excellency  Mr. 
Eyschen,  who  point  out  the  utility  of  knowing  in  advance  the  order  in  which 
the  various  articles  are  to  be  discussed,  the  subcommission  decides,  in  accord- 
ance with  the  propositions  of  Mr.  Martens,  to  distribute  the  work  in  the  fol- 
lowing manner  and  to  examine  the  provisions  of  the  said  draft  in  the  order  indi- 
cated below: 

1.  Prisoners  of  war  (Articles  23  to  34). 

2.  Capitulations  (Article  46)  and  Armistices  (Articles  47  to  52). 

3.  Parlementaires  (Articles  43  and  44). 

4.  Military  authority  zvith  respect  to  private  parties  and  Contributions  and 
requisitions  (Articles  36  to  42). 

5.  The  sick  and  wounded  (Articles  35  and  56),  the  examination  of  which 
provisions,  as  observed  by  Messrs.  Rolin  and  Chevalier  Descamps,  can  be  made 
more  usefully  when  the  results  of  the  deliberations  of  the  first  subcommission 
are  known  as  far  as  they  relate  to  this  subject. 

6.  Spies  (Articles  19  to  22). 

7.  Means  of  injuring  the  enemy  (Articles  12  to  14)  and  Sieges  and  bom- 
bardments (Articles  15  to  18). 

8.  On  the  internment  of  belligerents  and  the  care  of  the  wounded  in  neutral 
countries  (Articles  53  to  55). 

9.  On  military  authority  over  the  territory  of  a  hostile  State  (Articles 
1  to  8). 

10.  Who  should  be  recognised  as  a  belligerent  party;  combatants  and  non- 
combatants  (Articles  9  to  11). 

Messrs.  General  Mounier,  Lammasch  and  several  other  members  desiring 
a  delay  in  order  to  prepare  themselves  more  fully  for  the  discussion,  the  meeting 
adjourns. 

474 


[70] 

SECOND    MEETING 

MAY  27,  1899 


Mr.  Martens  presiding. 

The  minutes  of  the  first  meeting  are  adopted. 

The  President  announces  that  Mr.  Rolin  has  kindly  accepted  the  duties  of 
reporter  of  the  subcommission. 

Before  discussing  the  articles  on  the  program,  Mr.  Martens  deems  it  neces- 
sary to  make  a  declaration. 

-  In  1874  the  Russian  Government  submitted  a  draft  to  the  Conference  of 
Brussels.  The  views  of  the  Imperial  Government  remain  the  same.  It  is  not  a 
question,  in  its  opinion,  of  establishing  an  international  scientific  code,  but  of 
reaching  an  understanding  as  to  a  common  basis  for  all  the  instructions  which 
the  Governments  are  to  give  to  their  armies  and  which  shall  be  binding  in  time 
of  war.  In  this  way  there  will  be  evolved  a  universal  or  at  least  a  European 
law  of  war.  Each  Government  will  have  to  assume  only  one  pledge,  viz.,  that  it 
will  give  its  armies  identical  instructions  on  this  basis. 

His  Excellency  Mr.  Beernaert  observes  that  this  would  be  an  indirect  way  of 
establishing  an  international  convention. 

The  President  remarks  that  it  will  be  sufficient  to  have  a  single  article 
inserted  at  the  beginning  of  the  declaration  in  order  to  show  the  pledge  assumed 
as  indicated  above,  that  is,  a  pledge  to  give  uniform  instructions  to  their  armies 
on  an  identical  basis.  This  basis  will  consist  of  the  Brussels  Declaration,  re- 
vised and  modified  after  a  free  and  detailed  discussion  in  the  present  Conference. 
The  form  of  the  aforementioned  pledge  might  be  determined  later  on. 

The  order  of  the  day  is  an  examination  of  the  chapter :  "  Prisoners  of 
war." 

The  President,  before  opening  the  discussion,  says  that  all  the  articles  will 
of  course  be  given  a  second  reading. 

His  Excellency  Mr.  Beernaert  calls  attention  to  a  pamphlet  which  will 
be  distributed  among  the  members  and  which  bears  the  title  "  Draft  of  interna- 
tional regulations  regarding  prisoners  of  war."  He  thinks  that  certain  ideas 
contained  in  this  pamphlet  may  be  utilized  in  the  discussion  and  he  will  present, 
on  behalf  of  the  Belgian  delegation,  some  amendments  based  on  these  ideas. 

Article  23  of  the  Brussels  draft  is  now  read: 

Prisoners  of  war  are  lawful  and  disarmed  enemies. 

They  are  in  the  power  of  the  hostile  Government,  but  not  in  that  of  the  individuals  or 
corps  who  captured  them. 

They  must  be  humanely  treated. 

Any  act  of  insubordination  justifies  the  adoption  of  such  measures  of  severity  as  may 
be  necessary. 

All  their  personal  belongings  except  arms  shall  remain  their  property. 

475 


476  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

On  the  motion  of  his  Excellency  Mr.  Beernaert,  paragraph  4  of  Article  23 
is  carried  to  Article  28,  of  which  it  will  form  the  second  paragraph. 

After  an  exchange  of  views  between  his  Excellency  Mr.  Beernaert,  Mr. 
Renault,  and  Mr.  Lammasch,  the  latter  moves  to  add  to  the  word  *'  arms  "  in 
paragraph  5  "  and  everything  that  directly  serves  the  purpose  of  the  war." 

On  the  motion  of  General  Zuccari,  paragraph  4  will  read  as  follows :  "  All 
their  personal  belongings,  except  arms,  horses,  and  military  papers,  remain  their 
property." 

His  Excellency  Mr.  Beernaert  proposes  to  stipulate  by  means  of  an  express 
clause  that  commanders  in  chief  may  authorize  officers  to  keep  their  swords. 

Mr.  Renault  thinks  that  it  is  not  proper  to  mention  here  what  a  belligerent 
may  do.     It  is  a  question  of  determining  only  what  he  must  do. 

Mr.  Lammasch  deems  that  it  would  be  useful  to  omit  the  definition  of 
prisoners  of  war  as  contained  in  the  first  paragraph.  If  the  word  "  disarmed  " 
disappears  from  the  article,  it  would  not  be  necessary  to  make  an  express  reserva- 
tion as  to  the  swords  of  the  officers. 

At  the  proposal  of  the  President  the  following  wording  is  adopted : 

Prisoners  of  war  are  in  the  power  of  the  hostile  Government,  but  not 
in  that  of  the  individuals  or  corps  who  captured  them. 
[71]         They  must  be  humanely  treated. 

All  their  personal  belongings,  except  arms,  horses,  and  military  papers, 
remain  their  property. 

Article  24  is  adopted  as  worded  in  the  Brussels  draft : 

Prisoners  of  war  may  be  interned  in  a  town,  fortress,  camp,  or  other  place,  under  obli- 
gation not  to  go  beyond  certain  fixed  limits ;  but  they  can  only  be  placed  in  confinement  as 
an  indispensable  measure  of  safety. 

Articles  25  and  26  are  now  read : 

Article  25 

Prisoners  of  war  may  be  employed  on  certain  public  works  which  have  no  direct  con- 
nection with  the  operations  in  the  theater  of  war  and  which  are  not  excessive  or  humiliating 
to  their  military  rank,  if  they  belong  to  the  army,  or  to  their  official  or  social  position,  if  they 
do  not  belong  to  it. 

They  may  also,  subject  to  such  regulations  as  may  be  drawn  up  by  the  military  authori- 
ties, undertake  private  work. 

Their  wages  shall  go  tov>'ards  improving  their  position  or  shall  be  paid  to  them  on 
their  release.    In  this  case  the  cost  of  maintenance  may  be  deducted  from  said  wages. 

Article  26 

Prisoners  of  war  cannot  be  compelled  in  any  way  to  take  any  part  whatever  in  carry- 
ing on  the  operations  of  the  war. 

These  articles  are  adopted  tentatively. 

However,  his  Excellency  Mr.  Beernaert  will  suggest  a  nev%^  wording  at  the 
next  meeting. 

Article  27  is  now  read : 

The  Government  into  whose  hands  prisoners  of  war  have  fallen  charges  itself  with 
their  maintenance. 


SECOND  MEETING,  MAY  27,  1899  477 

The  conditions  of  such  maintenance  may  be  settled  by  a  reciprocal  agreement  between 
the  belligerent  parties. 

In  the  absence  of  this  agreement,  and  as  a  general  principle,  prisoners  of  war  shall  be 
treated  as  regards  food  and  clothing,  on  the  same  footing  as  the  troops  of  the  Government 
which  captured  them. 

His  Excellency  Mr.  Beernaert  proposes  to  supersede  "the  Government 
charges  itself  "  by  "  the  Government  is  charged,"  and  to  insert  between  the  words 
"  food  and  clothing  "  the  word  "  quarters." 

These  proposals  and  the  article  thus  amended  are  adopted. 

Article  28  is  now  read : 

Prisoners  of  war  are  subject  to  the  laws  and  regulations  in  force  in  the  army  in  whose 
power  they  are. 

Arms  may  be  used,  after  summoning,  against  a  prisoner  of  war  attempting  to  escape. 
If  recaptured  he  is  liable  to  disciplinary  punishment  or  subject  to  a  stricter  surveillance. 

If,  after  succeeding  in  escaping,  he  is  again  taken  prisoner,  he  is  not  liable  to  punish- 
ment for  his  previous  acts. 

After  an  exchange  of  views  between  General  Zuccari  and  his  Excellency 
Mr.  Beernaert,  the  subcommission  decides  to  modify  the  first  paragraph  as 
follows :  "  Prisoners  of  war  are  subject  to  the  laws,  regulations,  and  orders  in 
force  in  the  army  of  the  State  in  whose  power  they  are." 

The  second  paragraph  will  be  composed  of  the  old  paragraph  4  of  Article  23. 

In  view  of  the  new  wording  of  the  first  paragraph,  the  first  part  of  the 
second  paragraph  is  dropped. 

Mr.  Lammasch  proposes  to  add  to  Article  28,  paragraph  2  (former  para- 
graph 4  of  Article  23)  the  words:  "An  attempt  at  flight  and  a  refusal  to  per- 
form acts  which  they  ought  not  to  be  compelled  to  perform  shall  not  be  con- 
sidered as  insubordination." 

This  motion  is  not  carried. 

In  a  discussion  between  Messrs.  Colonel  Gilinsky,  Lammasch,  Lieutenant 
Colonel  Khuepach,  Colonel  Gross  von  Schwarzhoff,  his  Excellency  Mr. 
Beernaert,  Chevalier  Descamps  and  Rolin,  three  opinions  were  expressed  on 
the  subject  of  escaped  prisoners  of  war: 

1.  Mr.  Lammasch  is  of  opinion,  in  view  of  the  conflict  of  duties  existing 
with  regard  to  a  prisoner,  that  he  should  not  be  subjected  to  any  punishment, 
even  disciplinary,  for  an  attempt  to  escape.  He  proposes  to  strike  out  in  para- 
graph 3  (former  paragraph  2)  the  words  "liable  to  disciplinary  punishment 
or  "  and  to  omit  all  of  the  old  paragraph  3  beginning  with  the  words  *'  if,  after 
succeeding." 

2.  Lieutenant  Colonel  Khuepach  points  out  the  anomaly  in  this  article,  which 
[72]   subjects  to  disciplinary  punishments  those  prisoners  of  war  whose  escape 
has  not  been  successful  and  does  not  punish  those  who  have  succeeded  in 
escaping;  the  former  are  subject  to  punishment,  but  the  latter  not;  this  is  offer- 
ing a  premium  on  skill. 

3.  Colonel  Gilinsky  is  of  opinion  that  disciplinary  punishments  will  not 
be  sufficient  to  stop  attempts  to  escape  and  that  the  guilty  parties  ought  to  be 
brought  before  a  court-martial.  He  remarks  that  it  seems  impractical  to  limit 
to  a  disciplinary  punishment  the  penalty  inflicted  for  the  flight  of  a  prisoner  of 
war.     It  will  be  impossible  to  place  a  strong  guard  over  prisoners  of  war  without 


478  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

diminishing  the  number  of  combatants;  and  with  a  weak  guard  it  will  always 
be  possible  to  escape.  Will  not  shrewd  persons  take  advantage  of  the  almost 
absolute  immunity  in  order  to  make  frequent  escapes  and  thus  transmit  informa- 
tion regarding  the  enemy  to  their  army? 

Mr.  Rolin  observes  that  at  the  Brussels  Conference  it  was  the  unanimous 
opinion  that  the  first  paragraph  should  be  applicable  to  crimes  connected  with 
attempts  to  escape,  such  as  the  murder  of  guards. 

As  the  subcommission  adopts  this  opinion,  Mr.  Gilinsky  does  not  insist  on 
his  motion,  but  this  is  under  the  express  reservation  that  the  military  authori- 
ties in  case  of  crimes  connected  with  attempts  to  escape  will  not  inflict  dis- 
ciplinary penalties,  but  will  try  the  guilty  parties  according  to  the  military  laws 
in  force  in  the  captor  State. 

His  Excellency  Mr.  Beernaert  finally  proposes  the  following  wording: 

Escaped  prisoners  who  are  retaken  before  being  able  to  rejoin  their 
army  are  liable  to  disciplinary  punishment. 

Prisoners  who,  after  succeeding  in  escaping,  are  again  taken  prisoners  are 
not  liable  to  any  punishment  for  the  previous  flight. 

Colonel  Gross  von  Schwarzhoff  proposes  to  add  after  the  word  "  army  " 
the  words :  "  or  before  leaving  the  territory  occupied  by  the  army  that  captured 
them." 

The  wording  proposed  by  his  Excellency  Mr.  Beernaert  and  the  amend- 
ment of  Colonel  Gross  von  Schwarzhoff  meet  general  approval  and  the  last 
two  paragraphs  of  the  article,  thus  worded,  are  adopted. 

Article  29  is  adopted  with  the  wording  of  the  Brussels  draft: 

Every  prisoner  of  war  is  bound  to  give,  if  questioned  on  the  subject,  his  true  name  and 
rank,  and  if  he  infringes  this  rule,  he  is  liable  to  a  curtailment  of  the  advantages  accorded 
to  the  prisoners  of  war  of  his  class. 

Article  30  is  now  read: 

The  exchange  of  prisoners  of  war  is  regulated  by  a  mutual  understanding  between  the 
belligerent  parties. 

This  provision  is  dropped  at  the  suggestion  of  Colonel  Gross  von  Schwarz- 
hoff as  being  superfluous. 
Article  31  is  now  read: 

Prisoners  of  war  may  be  set  at  liberty  on  parole  if  the  laws  of  their  country  allow  it, 
and,  in  such  cases,  they  are  bound,  on  their  personal  honor,  scrupulously  to  fulfill,  both 
towards  their  own  Government  and  the  Government  by  which  they  were  made  prisoners, 
the  engagements  they  have  contracted. 

In  such  cases  their  own  Government  ought  neither  to  require  of  nor  accept  from  them 
any  service  incompatible  with  the  parole  given. 

This  article  is  adopted  except  that  the  words  "  is  bound  neither  to  require 
of  "  are  substituted  for  "  ought  neither  to  require  of." 

Article  32  is  adopted  with  the  wording  of  the  Brussels  draft: 

A  prisoner  of  war  cannot  be  compelled  to  accept  his  liberty  on  parole;  similarly  the 
hostile  Government  is  not  obliged  to  accede  to  the  request  of  the  prisoner  to  be  set  at  liberty 
on  parole. 


SECOND  MEETING,  MAY  27,  1899  479 

Article  33  is  now  read : 

Any  prisoner  of  war  liberated  on  parole  and  recaptured  bearing  arms  against  the  Gov- 
ernment to  which  he  had  pledged  his  honor  may  be  deprived  of  the  rights  accorded  to  pris- 
oners of  war  and  brought  before  the  courts. 

Upon  an  observation  by  Colonel  Gross  von  Schwarzhoff,  it  is  decided  to 
insert  the  words  "  or  against  its  allies  "  after  "  pledged  his  honor." 

In  regard  to  Article  34,  different  wordings  were  proposed  by  Messrs. 
Odier,   Lammasch,  Beernaert,  and  Rahusen. 

In  view  of  the  agreement  as  to  the  main  issue,  the  President  proposes  that 
these  delegates  reach  an  understanding  on  the  form  to  be  given  to  Article  34. 

The  meeting  adjourns. 


THIRD   MEETING 


MAY  30,  1899 


Mr.  Martens  presiding. 

The  minutes  of  the  second  meeting  are  read  and  adopted. 

Before  beginning  the  deliberations,  the  President  says  that  it  is  understood 
that  in  discussing  the  stipulations  of  the  Brussels  Declaration  the  delegates  are 
supposed  to  be  expressing  simply  their  personal  opinions  and  by  no  means  to 
be  committing  their  respective  Governments. 

The  wording  of  Articles  25  and  26,  proposed  by  his  Excellency  Mr. 
Beernaert  and  formulated  as  follows,  is  now  read : 

The  State  may  utilize  the  labor  of  prisoners  of  war  according  to  their 
rank  and  aptitude.  The  tasks  cannot  be  excessive ;  they  can  have  no  con- 
nection with  the  operations  of  the  war. 

Prisoners  may  be  authorized  to  work  for  the  public  service,  for  private 
persons,  or  on  their  own  account. 

Work  done  for  the  State  is  paid  for  at  the  rates  in  force  for  work  of  a 
similar  kind  done  by  soldiers  of  the  national  army. 

When  the  work  is  for  other  branches  of  the  public  service  or  for  private 
persons,  the  conditions  are  settled  in  agreement  with  the  ministry  of  war. 

The  wages  of  the  prisoners  shall  go  towards  improving  their  position, 
and  the  balance  shall  be  paid  them  at  the  time  of  their  release,  after  deducting 
the  cost  of  their  maintenance. 

The  President  remarks  that  the  proposed  wording  works  no  change  in  the 
idea  on  which  the  articles  of  the  draft  Declaration  of  Brussels  of  1874  were 
based.  However,  it  offers  the  advantage  of  satisfying  the  opinions  expressed  at 
the  previous  meeting. 

Mr.  Rolin  proposes  that  the  words  "  ministry  of  war "  be  superseded  by 
"  the  military  authorities." 

The  wording  thus  amended  is  adopted. 

Article  34  of  the  draft  of  1874  is  now  read: 

Individuals  in  the  vicinity  of  armies  but  not  directly  forming  part  of  them,  such  as 
correspondents,  newspaper  reporters,  sutlers,  contractors,  etc.,  etc.,  can  also  be  made  prison- 
ers. These  prisoners  should  however  be  in  possession  of  a  permit  issued  by  the  competent 
.authority  and  of  a  certificate  of  identity. 

The  President  remarks  that  the  subcommission  has  before  it  three  proposi- 
tions : 

1.  That  of  Messrs.  Odier  and  Lammasch,  to  resume  the  discussion  of 
Article  23,  already  adopted,  and  to  give  it  the  following  wording: 

480 


THIRD  MEETING,  MAY  30,  1899  481 

Individuals  who  form  part  of  the  belligerent  armed  forces,  if  they  fall 
into  the  enemy's  hands,  must  be  treated  as  prisoners  of  war. 

It  is  the  same  with  bearers  of  official  dispatches  openly  carrying  out  their 
mission,  and  with  civilian  aeronauts  instructed  to  observe  the  enemy  or  to 
maintain  communication  between  the  various  parts  of  the  army  or  of  the 
territory. 

Persons  who  follow  an  army  without  belonging  to  it,  such  as  newspaper 
correspondents,  sutlers,  contractors,  and  other  individuals  of  similar  occu- 
pation, if  they  are  in  possession  of  a  permit  issued  by  the  competent  authority 
and  of  a  certificate  of  identity,  shall  likewise  be  treated  as  prisoners  of  war. 

If  this  proposition  is  adopted  the  present  Article  23  will  become  Article  24 
and  the  present  Article  34  will  have  to  be  omitted. 

2.  The  alternative  proposition,  presented  by  Mr.  Lammasch  in  the  event 
that  the  first  proposition  should  not  be  adopted.  This  wording  of  Article  34 
has  a  simpler  appearance  and  is  worded  as  follows : 

Other  persons  in  the  vicinity  of  armies,  such  as  newspaper  correspond- 
ents, sutlers,  contractors,  and  other  people  of  similar  occupation  shall  have 
the  same  right  to  be  treated  as  prisoners  of  war  if  they  are  in  possession  of  a 
permit  issued  by  the  competent  authority  and  of  a  certificate  of  identity. 

3.  That  of  Mr.  Rolin,  which  also  has  the  merit  of  being  simple  besides 
embodying  the  additional  advantage  of  avoiding  a  definition  of  the  term  *'  prison- 
ers of  war,"  which  is  a  difficult  definition  to  formulate  and  which  it  was  agreed  at 

the  previous  meeting  to  omit. 
[74]   This  wording  is  as  follows: 

Individuals  who  follow  an  army  without  directly  belonging  to  it,  such 
as  newspaper  correspondents,  and  reporters,  sutlers,  and  contractors,  who 
fall  into  the  enemy's  hands  and  whom  the  latter  thinks  fit  to  detain,  shall 
enjoy  treatment  as  prisoners  of  war  provided  they  are  in  possession  of  a 
certificate  from  the  military  authorities  of  the  army  they  were  accompanying. 

The  President  thinks  that  Mr.  Rolin's  wording  is  in  conformity  both  with 
the  sense  of  the  present  Article  34  and  with  the  observations  made  at  the  previous 
meeting. 

Mr.  Odier  does  not  insist  on  his  proposition.  He  explains  that  his  chief 
objection  to  Article  34  of  the  Brussels  draft  was  based  on  the  word  "  also," 
which  would  imply  the  necessity  of  saying  first  who  may  be  made  prisoners  of 
war. 

The  proposition  of  Mr.  Rolin  is  accepted  without  discussion. 

The  additional  articles  to  the  chapter  "  Prisoners  of  war,"  proposed  by  his 
Excellency  Mr.  Beernaert,  are  now  read. 

Article  1 

An  information  bureau  relative  to  prisoners  of  war  is  instituted,  on  the  commencement 
of  hostilities,  in  each  of  the  belligerent  States  and,  when  necessary,  in  neutral  countries 
which  have  received  belligerents  in  their  territory.  The  function  of  this  bureau  is  to  reply 
to  all  inquiries  about  the  prisoners,  to  receive  from  the  various  services  concerned  all  the 
information  necessarj'  to  enable  it  to  make  out  an  individual  return  for  each  prisoner  of 
war.  It  is  kept  informed  of  internments  and  transfers,  as  well  as  of  admissions  into  hos- 
pital and  deaths. 

It  is  likewise  the  function  of  the  information  bureau  to  receive  and  collect  all  objects 


482  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

of  personal  use,  valuables,  letters,  etc.,  found  on  the  field  of  battle  or  left  by  prisoners  who 
have  died  in  hospitals  or  ambulances,  and  to  forward  them  to  those  concerned. 

Article  2 

Relief  societies  for  prisoners  of  war,  which  are  properly  constituted  in  accordance  with 
the  laws  of  their  country  and  with  the  object  of  serving  as  the  channel  for  charitable  effort 
shall  receive  from  the  belligerents,  for  themselves  and  their  duly  accredited  agents,  the  neces- 
sary facilities  in  order  that  they  can  efficiently  perform  their  humane  task  within  the  bounds 
imposed  by  military  necessities  and  administrative  regulations.  Agents  of  these  societies 
may  be  admitted  to  the  places  of  internment  for  the  purpose  of  distributing  relief,  as  also 
to  the  halting-places  of  repatriated  prisoners,  if  furnished  with  a  personal  permit  by  the 
military  authorities,  and  on  giving  an  undertaking  in  writing  to  comply  with  all  measures 
of  order  and  police  which  the  latter  may  issue. 

Article  3 

Information  bureaus  enjoy  the  privilege  of  free  postage.  Letters,  money  orders,  and 
valuables,  as  well  as  parcels  by  post,  intended  for  prisoners  of  war,  or  dispatched  by  them, 
shall  be  exempt  from  all  postal  duties  in  the  countries  of  origin  and  destination,  as  well  as 
in  the  countries  they  pass  through. 

Presents  and  relief  in  kind  for  prisoners  of  war  shall  be  admitted  free  of  all  import 
or  other  duties,  as  well  as  of  payments  for  carriage  by  State  railways. 

Article  4 

Officers  taken  prisoners  may  receive,  through  a  neutral  Power,  if  necessary,  the  full 
pay  allowed  them  in  this  position  by  their  country's  regulations,  the  amount  to  be  refunded 

by  their  Government. 
[75]  Article  S 

Prisoners  of  war  shall  enjoy  complete  liberty  in  the  exercise  of  their  religion,  including 
attendance  at  the  services  of  whatever  church  they  may  belong  to,  on  the  sole  condition 
that  they  comply  with  the  measures  of  order  and  police  issued  by  the  military  authorities. 

Article  6 

The  wills  of  prisoners  of  war  are  received  or  drawn  up  in  the  same  way  as  for  soldiers 
of  the  national  army. 

The  same  rules  shall  be  observed  regarding  death  certificates  as  well  as  for  the  burial 
of  prisoners  of  war,  due  regard  being  paid  to  their  grade  and  rank. 

Article  7 

After  the  conclusion  of  peace,  the  repatriation  of  prisoners  of  war  shall  be  carried  out 
as  quickly  as  possible. 

No  prisoner  can  be  detained,  nor  his  release  be  deferred  for  sentences  delivered  or 
events  occurring  since  his  capture,  except  for  common  law  crimes  or  misdemeanors. 

His  Excellency  Mr.  Beernaert  states  the  humanitarian  and  charitable  aim 
of  his  proposition.  Information  bureaus  are  not  a  new  institution,  having 
operated  as  early  as  1866  and  1870.  They  are  the  subject  of  Article  1.  Article  2 
requires  that  certain  facilities  be  accorded  to  societies  owing  their  origin  to 
private  initiative. 

Articles  1  and  2  are  adopted. 

As  regards  Article  3,  his  Excellency  Mr.  Beernaert  admifs  that  the  proposi- 
tion might  be  deemed  a  little  too  broad ;  if  so,  it  would  be  proper  to  transform  it 
into  a  simple  recommendation  to  be  inserted  in  the  minutes. 

Mr.  Lammasch  would  like  to  see  the  proposition  adopted  as  an  article.     He 


THIRD  MEETING,  MAY  30,  1899  483 

States  that  in  comparison  with  the  enormous  expenses  of  a  war,  those  involved 
by  such  a  provision,  which  is  of  such  great  interest  in  mitigating  the  ills  of 
prisoners,  would  be  insignificant. 

His  Excellency  Mr.  Beernaert,  while  thanking  Mr.  Lammasch  for  his  sup- 
port, recalls  that  in  1870  thousands  of  prisoners  were  unable  to  gain  possession 
of  their  letters  and  of  the  gifts  from  their  relatives  because  they  were  unable  to 
pay  postage  thereon.  It  was  sufficient,  for  instance,  to  send  quite  a  small  chari- 
table donation  in  order  to  enable  the  prisoners  of  Konigsberg  to  come  into  posses- 
sion of  their  mail,  which  consisted  of  several  thousand  letters. 

General  den  Beer  Poortugael  seconds  the  motion  of  Mr.  Lammasch. 

Article  3  is  unanimously  adopted. 

In  regard  to  Article  4,  Colonel  Gross  von  Schwarzhoff  proposes  to  omit 
the  words  "  through  a  neutral  Power." 

This  provision  may  give  rise  to  complications;  moreover,  it  is  superfluous, 
since  the  information  bureau  created  by  Article  1  may  take  charge  of  this  duty. 

The  amendment  is  accepted  by  his  Excellency  Mr.  Beernaert  and  the  article 
thus  amended  is  adopted. 

Articles  5  and  6  are  adopted. 

As  regards  Article  7,  Colonel  Gross  von  Schwarzhoff  proposes  that  the 
second  paragraph  thereof  be  omitted,  as  being  likely  to  hinder  the  exercise  of 
the  discipline  which  ought  to  be  maintained  and  provided  with  sufficient  sanc- 
tion up  to  the  last  day  of  captivity  of  prisoners  of  war. 

His  Excellency  Mr.  Beernaert  accepts  the  amendment.  The  first  paragraph 
of  Article  7  is  adopted. 

The  President  thanks  Mr.  Beernaert  for  his  initiative  which  has  brought 
about  the  adoption  of  the  additional  provisions  which  are  so  important  and  of 

such  great  humanitarian  interest. 
[76]  The  examination  of  the  chapters  entitled  "  Capitulations  "  and  "  Armis- 
tices "  is  now  taken  up. 

Article  46  is  read: 

The  conditions  of  capitulations  are  discussed  between  the  contracting  parties. 

They  must  not  be  contrary  to  military  honor. 

Once  settled  by  a  convention,  they  must  be  scrupulously  observed  by  both  parties. 

Mr.  Rahusen  considers  Article  46  superfluous. 

Mr.  Rolin  calls  the  attention  of  the  subcommission  to  the  fact  that  the 
second  paragraph  of  this  article  is  an  addition  to  the  original  draft,  the  insertion 
of  which  was  decided  upon  by  the  Conference  of  1874,  at  the  initiative  of  the 
delegate  from  the  French  Government. 

The  opinion  of  the  reporter  is  that  this  clause  is  of  great  significance  and 
that  it  would  be  a  pity  not  to  consider  it. 

An  exchange  of  views  showing  that  it  is  very  difficult  to  define  the  idea  of 
military  honor  now  takes  place  between  his  Excellency  Mr.  Beernaert,  Colonel 
Gilinsky,  Colonel  Gross  von  Schwarzhoff,  General  den  Beer  Poortugael,  Gen- 
eral Zuccari,  Mr.  Lammasch,  and  Chevalier  Descamps. 

Mr.  Zenil  proposes  the  following  wording  for  the  second  paragraph :  "  They 
shall  be  in  conformity  with  military  honor  according  to  the  code  of  the  victor." 

General  den  Beer  Poortugael  and  Colonel  Gross  von  Schwarzhoff  remark 
that  it  might  be  that  the  victor  had  no  military  code  or  that  it  contained  no 
provisions. 


484  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

The  President  observes  that  the  article  is  of  some  utility  because  it  affords 
some  guaranty  to  the  conquered  party  that  humiliating  conditions  will  not  be 
imposed  on  him. 

At  the  proposition  of  his  Excellency  Turkhan  Pasha,  it  is  decided  to  word 
the  second  paragraph  as  follows :  "  They  must  take  into  account  the  rules  of 
military  honor." 

Article  46  thus  amended  is  adopted. 

Articles  47  and  48  are  adopted  as  worded  in  the  Brussels  draft,  thus: 

Article  47 

An  armistice  suspends  military  operations  by  mutual  agreement,  between  the  belligerent 
parties.  If  its  duration  is  not  defined,  the  belligerent  parties  may  resume  operations  at  any 
time,  provided  always  that  the  enemy  is  warned  within  the  time  agreed  upon,  in  accordance 
with  the  terms  of  the  armistice. 

Article  48 

The  armistice  may  be  general  or  local.  The  first  suspends  the  military  operations  of 
the  belligerent  States  everywhere ;  the  second  only  between  certain  fractions  of  the  belliger- 
ent armies  and  within  a  fixed  radius. 

Article  49  is  now  read: 

An  armistice  must  be  officially  and  without  delay  notified  to  the  competent  authorities 
and  to  the  troops.    Hostilities  are  suspended  immediately  after  the  notification. 

Following  an  observation  by  Colonel  Gross  von  Schwarzhoff  and  an  ex- 
change of  views  between  Chevalier  Descamps,  Rolin,  and  his  Excellency  Mr. 
Beernaert,  it  is  decided,  on  motion  of  his  Excellency  Mr.  Beernaert,  to  add 
at  the  end  of  the  article  the  words  "  or  on  a  later  date  fixed." 

The  article  thus  amended  is  adopted. 

Article  50  is  now  read: 

It  rests  with  the  contracting  parties  to  settle,  in  the  terms  of  the  armistice,  what  com- 
munications may  be  held  between  the  populations. 

A  discussion  ensues  between  his  Excellency  Mr.  Beernaert,  Colonel  Gross 
von  Schv^^arzhoff,  Messrs.  Rolin,  Rahusen,  and  Lieutenant  Colonel  Khuepach 
in  regard  to  the  wording  of  this  article,  which  appears  incomplete. 

On  the  proposition  of  Messrs.  Martens  and  Khuepach,  the  following  word- 
ing is  adopted : 

It  rests  with  the  contracting  parties  to  settle,  in  the  terms  of  the  armistice, 
what  communications  may  be  held  -unth  and  between  the  populations  on  the 
theater  of  war. 

This  wording,  as  observed  by  Mr.  Martens,  will  leave  the  Governments  free 
to  make  special  arrangements  as  to  all  other  matters  in  the  armistice. 
Article  51  is  now  read: 

The  violation  of  the  armistice  by  one  of  the  parties  gives  the  other  party  the  right  of 
denouncing  it. 

Colonel  Gross  von  Schwarzhoff  remarks  that  the  right  to  call  off  the  armis- 
tice  is  not  sufficient  for  all  cases  in  which  the  conditions  are   not  observed 


THIRD  MEETING,  MAY  30,  1899  485 

[77]  by  one  of  the  belligerents.  For  instance,  by  following  Article  53  to  the 
letter  a  body  of  troops  suddenly  attacked  upon  the  breach  of  an  armistice 
would  not  even  have  a  right  to  defend  itself.  Leaving  out  of  account  this  ex- 
treme case,  an  immediate  resumption  of  operations  may  become  necessary  in 
order  to  prevent  the  enemy  from  securing  advantages  contrary  to  the  clauses  of 
the  armistice.  The  following  ought  therefore  to  be  added  to  Article  51 :  "  or  of 
recommencing  hostilities  immediately." 

Mr.  Rolin  thinks  he  ought  to  point  out  that  this  wording  would  render  it 
necessary  to  return  to  the  original  text  set  aside  in  1874.  It  was  not  desired  that 
hostilities  should  be  resumed  without  a  previous  denunciation. 

General  Zuccari  says  that  the  denunciation  is  within  the  competency  of  a 
general  in  chief,  whereas  the  resumption  of  hostilities  depends  in  most  cases  on 
a  subordinate  commander. 

Chevalier  Descamps  observes  that  the  proposition  of  Colonel  Gross  von 
ScHWARZHOFF  would  render  denunciation  optional,  whereas  it  ought  to  be  com- 
pulsory. 

Colonel  Gross  von  Schwarzhoff  inserts  in  the  text  of  his  proposition  the 
words  "  in  cases  of  urgency." 

After  an  exchange  of  views  between  Messrs.  Rolin,  General  Zuccari, 
Rahusen,  Chevalier  Descamps,  and  General  Mounier,  showing  that  it  is  neces- 
sary to  define  the  character  of  the  "  violation,"  the  following  wording,  due  to 
Colonel  Gross  von  Schwarzhoff  and  Chevaher  Descamps,  is  adopted: 

Any  serious  violation  of  the  armistice  by  one  of  the  parties  gives  the 
other  party  the  right  of  denouncing  it,  and  even,  in  cases  of  urgency,  of 
recommencing  hostilities  immediately. 

Article  52  is  adopted  as  worded  in  the  Brussels  draft,  thus: 

A  violation  of  the  terms  of  the  armistice  by  individuals  acting  on  their  own  initiative 
only  entitles  the  injured  party  to  demand  the  punishment  of  the  offenders  or,  if  necessary, 
compensation  for  the  losses  sustained. 

The  examination  of  the  chapter  entitled  "  Parlementaires  "  is  now  .taken  up. 
Article  43  is  read : 

A  person  is  regarded  as  a  parlementaire  who  has  been  authorized  by  one  of  the  bel- 
ligerents to  enter  into  communication  with  the  other,  and  who  advances  bearing  a  white 
flag,  accompanied  by  a  trumpeter  (bugler  or  drummer)  or  also  by  a  flag-bearer.  He  shall 
have  a  right  to  inviolability  as  well  as  the  trumpeter  (bugler  or  drummer)  and  the  flag- 
bearer  who  accompany  him. 

This  article  is  adopted  with  three  slight  modifications  proposed  by  his  Excel- 
lency Mr.  Beernaert  and  General  Sir  John  Ardagh: 

1.  Omission  of  the  parentheses  around  the  words  "  bugler  or  drummer." 

2.  The  words  "  or  by  an  interpreter  "  are  added  to  the  words  "  flag-bearer." 

3.  The  words  "  he  has  a  right "  are  substituted  for  the  words  "  he  shall  have 
a  right." 

Article  44  is  read : 

The  commander  to  whom  a  parlementaire  is  sent  is  not  in  all  cases  and  under  all  con- 
ditions obliged  to  receive  him. 

It  is  lawful  for  him  to  take  all  the  necessary  steps  to  prevent  the  parlementaire  taking 
advantage  of  his  stay  within  the  radius  of  the  enemy's  position  to  the  prejudice  of  the  latter, 


486  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

and  if  the  parlementaire  has  rendered  himself  guilty  of  such  an  abuse  of  confidence,  he  has 
the  right  to  detain  him  temporarily. 

He  may  likewise  declare  beforehand  that  he  will  not  receive  parlementaires  during  a 
certain  period.  Parlementaires  presenting  themselves  after  such  a  notification,  from  the  side 
to  which  it  has  been  given,  forfeit  the  right  of  inviolability. 

Colonel  Gross  von  SchwarzhofF  proposes  that  the  third  paragraph  be 
omitted ;  in  his  opinion,  it  is  important  to  maintain  the  absolute  inviolability  of 
parlementaires.  Circumstances  arise  in  which  it  is  of  paramount  interest  to 
enter  into  conference  with  the  enemy,  even  if  the  latter  should  have  declared 
that  he  does  not  wish  to  receive  parlementaires. 

His  Excellency  Count  Nigra  recalls  the  fact  that  the  privilege  of  sending 
parlementaires  flows  from  the  law  of  nations.  It  is  not  proper  for  the  Con- 
ference to  admit  that  in  certain  cases  this  privilege  may  be  removed  at  the  will 
of  the  belligerent. 

General   Mounier  believes  that   the   second   paragraph    furnishes   all   the 
[78]  necessary  means  for  safeguard  against  abuses  which  might  be  made  of 
the  sending  of  parlementaires. 

General  den  Beer  Poortugael  fears  that  such  abuses  may  be  serious. 

Colonel  Gross  von  SchwarzhofF  points  out  that  the  belligerent  who  does  not 
wish  to  receive  parlementaires  has  but  to  cause  them  to  be  sent  back  by  the  out- 
posts. Moreover,  a  declaration  that  parlementaires  will  not  be  received  for  a 
certain  length  of  time  will  rarely  be  made. 

Article  44,  minus  the  last  paragraph,  is  adopted. 

Article  45  is  likewise  adopted  as  worded  in  the  Brussels  draft,  thus: 

The  parlementaire  loses  his  rights  of  inviolability  if  it  is  proved  in  a  clear  and  incon- 
testable manner  that  he  has  taken  advantage  of  his  privileged  position  to  provoke  or  commit 
an  act  of  treason. 

The  meeting  adjourns. 


FOURTH    MEETING 

JUNE  1,  1899 


Mr.  Martens  presiding. 

The  minutes  of  the  third  meeting  are  read  and  adopted. 

The  President  suggests  that  a  change  be  made  in  the  order  of  the  day  as 
adopted. 

He  proposes  not  to  discuss  the  articles  concerning  "  contributions  and 
requisitions  "  after  those  on  "  miHtary  authority  with  respect  to  private  persons," 
as  was  agreed  upon  at  first,  but  to  reserve  the  examination  thereof  in  order  to 
connect  it  with  the  chapter  "  on  miHtary  authority  over  the  territory  of  the  hostile 
State."  After  Articles  36-39  the  deliberations  will  then  be  on  the  chapter 
''  Spies." 

This  proposal  is  adopted. 

The  President  opens  the  discussion  on  Article  36: 

The  population  of  occupied  territory  cannot  be  forced  to  take  part  in  military  opera- 
tions against  its  own  country. 

Colonel  Gilinsky  thinks  it  necessary  to  define  the  purport  of  this  article  by 
introducing  therein  the  principle  that  it  is  a  question  solely  of  direct  participation 
in  the  military  operations  on  the  battlefield.  In  his  opinion  a  belligerent  may 
force  an  inhabitant  to  furnish  wagons,  horses,  etc. 

His  Excellency  Mr.  Beernaert  is  of  opinion  that  the  amendment  completely 
modifies  the  purport  of  the  article. 

The  inhabitants  cannot  be  forced,  directly  or  indirectly,  to  take  part  in 
military  operations  against  their  own  country. 

However,  there  are  some  measures  to  which  they  must  submit;  the  belliger- 
ent may,  for  instance,  compel  the  inhabitants  to  deliver  up  their  horses  and 
vehicles. 

General  den  Beer  Poortugael  also  thinks  that  the  article  ought  to  be  main- 
tained. 

Colonel  Gross  von  Schwarzhoff  seconds  the  maintenance  of  the  article, 
which  has  reference  only  to  the  population  as  a  whole  and  not  to  individuals. 
It  seems  to  him  that  this  provision  does  not  deprive  the  belligerents  of  the  right 
to  force  an  individual  to  perform  some  service,  for  instance  to  show  the  road. 

Colonel  Gilinsky  does  not  insist  on  his  proposal,  and  Article  36  is  adopted 
without  modification. 

Article  37  is  adopted  as  worded  in  the  Brussels  draft: 

The  population  of  occupied  territory  cannot  be  compelled  to  swear  allegiance  to  the 
hostile  Power. 

487 


488  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

[79]  Article  38  is  now  read: 

Family  honor  and  rights,  and  the  lives  and  property  of  persons,  as  well  as  their  reli- 
gious convictions  and  their  practice,  must  be  respected. 
Private  property  cannot  be  confiscated. 

His  Excellency  Mr.  Beernaert  considers  that  the  provision  in  itself  is  ex- 
cellent, but  that  the  phrase  "  family  honor  and  rights  "  is  too  vague. 

General  den  Beer  Poortugael  thinks  that  it  is  neither  necessary  nor  possible 
to  define  more  in  detail  the  sense  of  this  article,  the  purport  of  w^hich  is  evident. 

Colonel  Gross  von  Schwarzhoff  desires  to  see  added  thereto  the  restriction 
"  as  far  as  military  necessities  permit."  The  belligerents  ought  to  be  able  to  force 
an  individual,  even  by  threatening  his  life. 

Mr.  Lammasch  says  that  the  amendment  of  Colonel  Gross  von  Schwarz- 
hoff ought  to  affect  only  one  part  of  the  article ;  "  family  honor  and  rights,  and 
religious  convictions  "  ought  at  all  events  to  be  safeguarded. 

Colonel  Gross  von  Schwarzhoff  answers  that  the  necessities  of  war  will  not 
always  permit  all  religious  convictions  to  be  respected. 

Chevalier  Descamps  deems  it  contrary  to  the  spirit  of  the  Brussels  draft 
to  introduce  into  the  different  articles  a  special  clause  relating  to  the  necessities 
of  war.  It  is  impossible  to  admit  the  destruction  of  human  rights  as  a  legal  thesis 
although  recourse  is  occasionally  had  thereto  if  necessary. 

Mr.  Rolin  asks  Colonel  Gross  von  Schwarzhoff  to  withdraw  his  amend- 
ment. As  a  matter  of  fact  Article  38  lays  down  the  general  principle  of  respect 
for  honor,  the  lives  of  individuals,  and  private  property.  It  is  not  right  to 
weaken  the  general  principle  by  giving  it  the  form  of  a  doubtful  declaration.  The 
necessary  restrictions  are  indicated  in  other  articles,  notably  as  regards  requisi- 
tions. 

Colonel  Gross  von  Schwarzhoff,  although  not  entirely  sharing  this  opinion, 
withdraws  his  amendment  provided  it  is  thoroughly  established  that  the  declara- 
tion of  Chevalier  Descamps  gives  an  exact  interpretation  of  the  article. 

Mr.  Odier  proposes  to  supersede,  in  the  first  paragraph  of  the  article,  the 
words  "  property  of  persons  "  by  the  phrase  "  private  property  whether  belong- 
ing to  individuals  or  corporations  "  as  employed  in  the  manual  adopted  by  the 
Institute  of  International  law  at  its  session  at  Oxford  in  1880. 

The  President  remarks  to  Mr.  Odier  that  Article  8  of  the  Brussels  draft 
treats  of  collective  property. 

His  Excellency  Mr.  Beernaert  proposes  the  formula :  "  the  lives  of  in- 
dividuals and  private  property." 

Article  38  is  adopted  as  follows: 

Family  honor  and  rights,  the  lives  of  persons,  and  private  property,  as 
well  as  religious  convictions  and  practice  must  be  respected. 
Private  property  cannot  be  confiscated. 

Article  39  is  adopted  as  worded  in  the  Brussels  draft: 
Pillage  is  formally  forbidden. 

Articles  35  and  56  are  now  read: 

Article  35 
The  obligations  of  belligerents  virith  respect  to  the  service  of  the  sick  and  wounded  are 


FOURTH  MEETING,  JUNE  1,  1899  489 

governed  by  the  Geneva  Convention  of  August  22,  1864,  save  such  modifications  as  the  latter 
may  undergo. 

Article  56 

The  Geneva  Convention  applies  to  sick  and  wounded  interned  in  neutral  territory. 

The  President  does  not  think  that  these  provisions  will  occasion  discus- 
sion. 

They  merely  embody  a  statement  that  the  rules  of  the  Geneva  Convention 
shall  be  observed ;  the  last  sentence  of  Article  35  also  embodies  a  possible  revi- 
sion of  the  Geneva  Convention,  with  which  a  future  conference  will  perhaps 
soon  be  engaged. 

General  Sir  John  Ardagh  asks  to  insert  in  the  minutes  that  in  his  opinion 
the  Geneva  Convention  needs  revision. 

The  two  articles  are  adopted. 

The  discussion  of  the  chapter  "  Spies  "  is  now  taken  up. 

Article  19  is  read: 

A  person  can  only  be  considered  a  spy  when,  acting  clandestinely  or  on  false  pretenses, 
he  obtains  or  endeavors  to  obtain  information  in  the  districts  occupied  by  the  enemy,  with 
the  intention  of  communicating  it  to  the  hostile  party. 

[80]  Colonel  Gross  von  Schwarzhoff  proposes  to  supersede  the  words  "  dis- 
tricts occupied  "  by  the  words  "  territories  occupied." 

Colonel  von  Schnack  observes  that  Article  1  gives  a  definition  of  the  words 
"  territories  occupied,"  the  sense  of  which  is  too  limited  for  the  application  of 
Article  19.  In  order  that  there  may  be  an  act  of  espionage,  it  is  not  necessary 
that  the  territory  in  which  this  act  is  committed  be  in  a  state  of  occupation,  but  it 
is  sufficient  that  the  troops  of  one  of  the  belligerents  be  there. 

The  article  is  adopted  with  the  amendment  of  Colonel  Gross  von  Schwarz- 
hoff. 

Article  20  is  now  read : 

A  spy  taken  in  the  act  shall  be  tried  and  treated  according  to  the  laws  in  force  in  the 
army  which  captures  him. 

General  Mounier  requests  the  omission  of  this  article  for  a  reason  similar 
to  that  which  led  to  the  suppression  of  several  other  articles  of  the  draft  sub- 
mitted to  the  Brussels  Conference.  It  would  be  hard  for  a  spy,  acting  perhaps 
under  orders  from  his  superiors,  to  be  condemned  by  virtue  of  a  declaration 
signed  by  his  own  Government. 

The  President  observes  that  this  article,  which  gave  rise  to  a  deep  discussion 
in  1874,  is  for  the  purpose  of  sanctioning  the  principle  that  a  spy  taken  in  the 
act  shall  be  tried  and  shall  not  be  executed  at  once. 

On  motion  of  Mr.  Rolin,  Article  20  is  adopted  as  follows :  "  A  spy  taken 
in  the  act  shall  not  be  punished  without  previous  trial." 

Article  21  is  now  read: 

A  spy  who  rejoins  the  army  to  which  he  belongs  and  who  is  subsequently  captured  by 
the  enemy  is  treated  as  a  prisoner  of  war  and  incurs  no  responsibility  for  his  previous  acts. 

This  article  is  adopted,  save  a  slight  modification  proposed  by  his  Excellency 


490  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

Mr.  Beernaert.     The  article  is  to  begin  with  these  words    "  A  spy  who,  after 
rejoining  the  army  to  which  he  belongs,  is  captured,  etc." 
Article  22  is  now  read: 

Soldiers  not  wearing  a  disguise  who  have  penetrated  into  the  zone  of  operations  of 
the  hostile  army,  for  the  purpose  of  obtaining  information,  are  not  considered  spies. 

Similarly,  the  following  should  not  be  considered  spies,  if  they  are  captured  by  the 
enemy:  soldiers  (and  also  civilians,  carrying  out  their  mission  openly),  intrusted  with  the 
delivery  of  dispatches  intended  either  for  their  own  army  or  for  the  enemy's  army. 

To  this  class  belong  likewise,  if  they  are  captured,  persons  sent  in  balloons  for  the 
purpose  of  carrying  dispatches  and,  generally,  of  maintaining  communications  between  the 
different  parts  of  an  army  or  a  territory. 

His  Excellency  Mr.  Beernaert  is  of  opinion  that  this  wording  is  very  con- 
fusing. 

The  discussion  of  the  three  paragraphs  of  this  article  is  now  taken  up. 

The  first  paragraph  is  adopted  without  modification. 

In  the  second  paragraph,  at  the  sugge'stion  of  his  Excellency  Mr.  Beernaert 
the  words  **  if  they  are  captured  by  the  enemy  "  are  stricken  out. 

Mr.  Rolin  proposes  the  wording:  "  Soldiers  and  civilians  carrying  out  their 
mission  openly,  intrusted  with  the  delivery,  etc." 

Colonel  Gilinsky  proposes  to  insert  after  "  civilians  "  the  words  "  belonging 
to  the  army,"  or  else  to  strike  out  the  second  paragraph;  he  fears  that  private 
individuals  may  provide  themselves  with  a  dispatch  as  a  pretext  to  spy. 

As  Mr.  Rolin  observes  that  Article  19  would  be  applicable  to  them  in  this 
case,  Colonel  Gilinsky  does  not  insist  on  maintaining  his  amendment,  but  asks 
that  mention  be  made  thereof  in  the  minutes. 

Messrs.  Bihourd  and  Colonel  Gross  von  Schwarzhoff  ask  that  the  second 
paragraph  be  omitted,  as  it  appears  to  them  to  be  equivalent  to  Article  19. 

Messrs.  Rolin,  Beldiman,  Odier,  and  Colonel  Coanda  advocate  the  main- 
tenance of  the  article,  which  contains  a  safeguard  against  false  interpretations 
to  the  detriment  of  non-military  persons  who  are  carrying  dispatches  in  good 
faith. 

After  an  exchange  of  views  between  Messrs.  Colonel  Coanda,  Colonel  Gilin- 
sky, Descamps,  and  Martens,  General  Mounier  proposes,  in  order  to  avoid  the 
misunderstanding  which  may  arise  from  the  double  definition  of  those  who  are 
considered  as  spies  and  those  who  are  not,  to  connect  Article  22  with  Article  19 
by  means  of  the  word  "  thus,"  and  to  have  it  follow  as  Article  20. 

The  purpose  of  this  article  will  then  be  to  declare  by  way  of  example,  that 
certain  categories  of  persons,  who  have  sometimes  been  classified  in  practice  as 

spies,  shall  not  be  considered  as  such, 
[81]   General  Zuccari  observes  that  at  the  present  time  so  many  persons  are 
under  arms  that  it  is  not  necessary  to  use  civilian  dispatch  bearers.     He 
would  be  in  favor  of  omitting  the  second  paragraph. 

The  proposition  of  General  Mounier  and  the  wording  of  Mr.  Rolin  are 
adopted. 

The  second  paragraph  of  Article  20  (formerly  22)  is  therefore  worded  as 
follows : 

Similarly,  the  following  are  not  considered  spies :  soldiers  and  civilians 
carrying  out  their  mission  openly,  entrusted  with  the  delivery  of  dispatches 
intended  either  for  their  own  army  or  for  the  enemy's  army. 


FOURTH  MEETING,  JUNE  1,  1899  491 

Paragraph  3  is  adopted  minus  the  words  "  if  they  are  captured." 
The  chapter  '*  Means  of  injuring  the  enemy  "  is  now  taken  up. 
Article  12  is  read: 

The  laws  of  war  do  not  recognize  in  belligerents  an  unlimited  power  in  the  adoption 
of  means  of  injuring  the  enemy. 

His  Excellency  Mr.  Beernaert  and  Mr.  Rolin  propose  the  following  word- 
ing, which  is  adopted :  "  The  right  of  belligerents  to  adopt  means  of  injuring  the 
enemy  is  not  unlimited." 

Article  13  is  read: 

According  to  this  principle  are  especially  forbidden : 

a.  Employment  of  poison  or  poisoned  weapons ; 

h.  Murder  by  treachery  of  individuals  belonging  to  the  hostile  nation  or  army; 

c.  Murder  of  an  enemy  who,  having  laid  down  his  arms  or  having  no  longer  means  of 
defense,  has  surrendered  at  discretion; 

d.  The  declaration  that  no  quarter  will  be  given ; 

e.  The  employment  of  arms,  projectiles  or  material  calculated  to  cause  unnecessary  suf- 
fering, as  well  as  the  use  of  projectiles  prohibited  by  the  Declaration  of  St.  Petersburg  of 
1868; 

/.  Making  improper  use  of  a  flag  of  truce,  of  the  national  flag  or  of  the  military  in- 
signia and  uniform  of  the  enemy,  as  well  as  the  distinctive  badges  of  the  Geneva  Convention; 

g.  Any  destruction  or  seizure  of  the  enemy's  property  that  is  not  imperatively  de- 
manded by  the  necessity  of  war. 

The  words  "  according  to  this  principle  "  at  the  beginning  of  this  provision 
are  stricken  out  at  the  suggestion  of  his  Excellency  Mr.  Beernaert. 

Letter  a  is  adopted. 

Colonel  van  Schnack  asks  what  is  meant  by  the  expression  "  murder  by 
treachery."     It  seems  to  him  that  this  wording  is  not  correct. 

After  an  exchange  of  views  on  this  subject  between  Mr.  Beldiman,  his 
Excellency  Mr.  Beernaert,  Messrs.  Rolin,  Martens,  and  General  Mounier,  Mr. 
Lammasch  suggests  the  following  wording:  "  the  act  of  killing  treacherously  in- 
dividuals belonging  to  the  hostile  nation  or  army." 

This  proposition  is  adopted.  ^ 

It  is  decided  likewise  that  the  expression  "  act  of  kiUing  "  shall  be  substi- 
tuted for  the  word  "  murder  "  under  letter  c. 

Letter  d  is  adopted  without  modification. 

As  to  letter  e,  it  is  decided  to  eliminate  therefrom  the  words  "  by  the  declara- 
tion of  St.  Petersburg  of  1868,"  by  reason  of  the  decision  reached  yesterday  by 
the  first  subcommission  of  the  First  Commission,  which  might  result  in  an  ex- 
tension of  said  declaration. 

Letter  /  is  adopted. 

In  regard  to  letter  g.  Captain  Crozier  calls  attention  to  the  important  ques- 
tion of  the  inviolability  of  private  property  on  the  sea  in  time  of  naval  war. 

He  recognizes,  however,  that  the  examination  of  this  question  is  not  within 
the  competence  of  this  subcommission,  the  business  of  which  is  to  revise  the 
Bnissels  draft;  but  he  would  nevertheless  like  to  have  this  question  presented 
to  the  Conference. 

Mr.  Rahusen  thinks  it  would  be  proper  to  expressly  state,  either  in  the 
[82]  preamble  or  otherwise,  that  these  articles  in  no  wise  apply  to  naval  war. 


492  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

Captain  Crozier,  who  is  joined  by  Mr.  Beldiman,  expresses  a  desire  to 
have  a  place  assigned  in  the  deliberations  of  the  Conference  to  this  important 
subject. 

The  President  considers  that  the  plenary  Commission  should  examine 
whether  it  is  proper  to  propose  that  the  Conference  take  up  this  subject. 

It  is  decided  that  the  declaration  of  Captain  Crozier  shall  be  inserted  in 
the  minutes. 

As  regards  letter  g,  his  Excellency  Mr.  Beernaert  asks  that  the  word  "  neces- 
sity "  be  put  in  the  plural  according  to  the  customary  form  "  the  necessities  of 
war." 

Letter  g  is  adopted. 

The  meeting  adjourns. 


FIFTH    MEETING 

JUNE  3,  1899 


Mr.  Martens  presiding. 

The  minutes  of  the  fourth  meeting  are  read. 

Captain  Crozier  remarks  that  at  the  preceding  session  he  did  not  mean 
that  the  question  of  respect  for  private  property  at  sea  was  not  within  the  com- 
petency of  this  subcommission.  He  wished  simply  to  say  that  within  the  pro- 
gram thus  far  observed  by  the  subcommission  this  question  had  not  formed 
part  of  its  labors. 

The  minutes  are  adopted. 

The  President  opens  the  discussion  on  the  chapter :  "  Sieges  and  bom- 
bardments." 

Article  15  is  read: 

Fortified  places  are  alone  liable  to  be  besieged.  Open  towns,  agglomerations  of  dwell- 
ings, or  villages  which  are  not  defended  can  neither  be  attacked  nor  bombarded. 

General  den  Beer  Poortugael,  recalling  the  fact  that  Captain  Crozier  ex- 
pressed a  desire  at  the  previous  meeting  to  have  the  Conference  take  up  the  ques- 
tion of  respect  for  private  property  at  sea,  a  principle  whose  adoption  has  been 
warmly  supported  by  the  Netherlands  delegation,  declares  that  he  desires  on  his 
part  to  express  a  similar  wish,  which  he  asks  to  have  recorded  in  the  minutes. 

This  desire  is  to  have  the  prohibition  against  bombardment  in  Article  15 
applied  to  both  sea  and  land  forces.  Now,  neither  this  subcommission  nor  the 
second  subcommission  of  the  First  Commission  appear  competent  to  deal  with  this 
question.     He  therefore  asks  in  what  Commission  it  can  be  considered. 

His  Excellency  Mr.  Beernaert  is  of  opinion  that  the  distinction  established 
by  General  den  Beer  Poortugael  between  bombardment  on  land  and  that  by 
naval  forces  is  not  well  founded.  It  seems  to  him  absolutely  contrary  to  the 
spirit  of  the  article  that  ships  should  be  permitted  to  bombard  places  not  liable  to 
bombardment  in  land  warfare.  In  order  to  settle  the  question,  he  proposes  to 
add  the  word  *'  ports  "  to  the  words  "  towns,  etc." 

General  den  Beer  Poortugael  indorses  the  proposition  of  his  Excellency  Mr. 
Beernaert  provided  mention  is  made  in  the  minutes  of  the  principle  on  which 
it  is  based. 

Mr.  Bihourd  observes  that,  at  the  previous  meeting,  it  was  agreed  that  the 
Brussels  Declaration  related  solely  to  land  warfare ;  there  would  be  a  contradic- 
tion if  the  scope  of  Article  15  were  extended  to  maritime  warfare.  It  appears 
to  him  that  there  is  a  marked  difference  between  maritime  and  land  warfare  as 
regards  bombardments. 

493 


494  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

The  President  states  that,  as  a  matter  of  fact,  the  decision  reached  by  the 
subcommission  contemplates  the  scope  indicated  by  Mr.  Bihourd. 

General  Zuccari  observes  that  outside  of  land  and  naval  wars  there  is  also 
coast  warfare.  In  which  category  shall  the  latter  be  placed?  He  indorses  the 
observations  of  his  Excellency  Mr.  Beernaert. 

The  President  remarks  that  the  two  different  questions  presented  should  be 
[83]  well  defined.     General  den  Beer  Pgortugael  has  moved  to  utter  a  vau  in 
the  minutes,  whereas  his  Excellency  Mr.  Beernaert  would  like  to  add  the 
word  "  ports  "  to  the  article. 

His  Excellency  Mr.  Beernaert  considers  that  the  bombardment  of  a  port 
by  a  fleet  relates  rather  to  land  warfare.  At  the  most  it  is  a  mixed  question.  He 
asks  how  it  could  be  laid  down  as  a  principle  that  the  same  town  could  be  bom- 
barded by  a  fleet  and  not  by  an  army. 

Chevalier  Descamps  says  that  as  the  question  is  certainly  connected  with 
the  one  before  the  subcommission,  there  seems  to  him  to  be  no  doubt  about  the 
competency  of  the  latter.  However,  there  is  another  standpoint.  It  is  a  ques- 
tion here  of  the  territorial  sea,  and  the  question  therefore  does  not  embrace 
naval  warfare  proper. 

General  den  Beer  Poortugael  desires  to  say  that  he  no  longer  entertains  any 
doubt  as  to  the  question  of  competency.  He  supports  the  proposal  of  his  Ex- 
cellency Mr.  Beernaert  and  Chevalier  Descamps. 

General  Zuccari  adds  that  in  this  question,  while  the  means  are  maritime 
the  object  almost  always  has  to  do  with  the  land. 

The  President  asks  whether  it  would  not  therefore  be  proper  to  simply 
state  in  the  minutes  that  the  subcommission  interprets  Article  15  as  meaning  that 
ports  may  not  be  bombarded  any  more  than  open  towns. 

His  Excellency  Mr.  Beernaert  asks  Mr.  Bihourd  whether  he  would  not 
consent  to  having  the  question  settled  in  the  sense  indicated  by  the  President; 
he  remarks  that  in  case  of  debarkation  naval  forces  may  become  land  forces  by 
virtue  of  that  fact  alone. 

Colonel  Gilinsky  proposes  that  the  decision  of  this  question  be  referred  to 
the  plenary  session  of  the  Commission  with  all  the  members  present,  including 
sailors. 

This  proposition  is  adopted. 

Colonel  Gross  von  Schwarzhoff  moves  to  strike  out  the  first  sentence  of 
Article  15.  It  is  useless  to  say  that  fortified  places  are  liable  to  be  besieged, 
which,  moreover,  is  not  complete,  since  the  existence  of  field  fortifications  may 
make  it  necessary  to  besiege  a  place  which  is  not  fortified.  The  second  sen- 
tence, in  which  the  places  which  may  neither  be  attacked  nor  bombarded  are 
designated,  is  sufficient. 

Messrs,  Rolin  and  General  den  Beer  Poortugael  indorse  this  opinion,  and 
the  motion  of  Colonel  Gross  von  Schwarzhoff  is  adopted. 

Mr.  Lammasch  suggests  an  amendment  relating  to  both  Article  15  and 
Article  16.  He  is  of  opinion  that  bombardment  should  be  expressly  prohibited 
both  of  an  isolated  dwelling  and  of  an  uninhabited  building,  for  instance  a  large 
mansion  or  a  church. 

General  den  Beer  Poortugael  observes  that  such  a  definition  is  contrary  to 
the  rules  of  military  terminology.     Isolated  buildings  are  never  "  bombarded." 

After  an  exchange  of  views  on  this  point,  the  following  wording  is  adopted : 


FIFTH  MEETING,  JUNE  3,  1899  495 

"  towns,  villages,  dwellings,  or  buildings  which  are  not  defended  can  neither  be 
attacked  nor  bombarded." 
Article  16  is  read: 

But  if  a  town  or  fortress,  agglomeration  of  dwellings  or  village,  is  defended,  the 
officer  in  command  of  an  attacking  force  must,  before  commencing  a  bombardment,  except 
in  assault,  do  all  in  his  power  to  warn  the  authorities. 

His  Excellency  Mr.  Beernaert  points  out  that  the  right  to  bombard  should 
not  be  recognized,  and  he  thinks  that  Article  16  should  be  modified. 

After  a  thorough  exchange  of  views,  in  which  his  Excellency  Mr.  Beernaert, 
Messrs.  Rolin,  Gilinsky,  Lammasch,  and  Colonel  Gross  von  Schwarzhoff  took 
part,  the  following  wording  is  unanimously  adopted,  except  one  vote  (Great 
Britain)  : 

The  officer  in  command  of  an  attacking  force  must,  before  commencing 
a  bombardment,  except  in  cases  of  assault,  do  all  in  his  power  to  warn  the 
authorities. 

Article  17  is  read: 

In  such  cases  all  necessary  steps  must  be  taken  to  spare,  as  far  as  possible,  buildings 
dedicated  to  art,  science,  or  charitable  purposes,  hospitals,  and  places  where  the  sick  and 
wounded  are  collected  provided  they  are  not  being  used  at  the  time  for  military  purposes. 

It  is  the  duty  of  the  besieged  to  indicate  the  presence  of  such  buildings  by  distinctive 
and  visible  signs  to  be  communicated  to  the  enemy  beforehand. 

The  first  paragraph  of  this  Article  17  is  adopted  as  follows: 

In  sieges  and  bombardments,  all  necessary  steps  must  be  taken  to  spare,  as 
[84]   far  as  it  is  possible,  buildings  dedicated  to  religion,  art,  science,  or  charitable 
purposes,  hospitals  and  places  where  the  sick  and  wounded  are  collected,  pro- 
vided they  are  not  being  used  at  the  time  for  military  purposes. 

The  second  paragraph  is  adopted  without  modification. 
Article  18  is  read: 

A  town  taken  by  assault  ought  not  to  be  given  over  to  pillage  by  the  victorious  troops. 

Colonel  Gross  von  Schwarzhoff  remarks  that  the  article  is  superfluous  in 
addition  to  Article  39. 

On  motion  of  Mr.  Descamps,  this  provisions  is  worded  as  follows :  "  It 
is  forbidden  to  give  over  to  pillage  a  town  taken  by  storm." 

The  chapter  "  On  belligerents  and  wounded  cared  for  in  neutral  countries  " 
is  now  taken  up  for  examination. 

His  Excellency  Mr.  Eyschen  thinks  he  ought  to  embrace  this  opportunity 
to  submit  to  the  Conference  the  question  whether  it  would  not  be  well  to  define 
more  accurately  the  international  situation  arising  from  neutrality,  as  the  articles 
now  to  be  taken  up  deal  with  neutrals. 

At  present  it  is  very  difficult  to  know  precisely  what  their  rights  and  duties 
are.  Now,  it  is  important  to  determine  these  rights  and  duties  as  far  as  possible 
in  time  of  peace  while  it  is  possible  to  deliberate  without  the  influence  of  passion 
and  to  judge  in  accordance  with  general  views. 


496  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

This  would  obvi'ously  be  in  the  interest  of  the  belHgerent,  who,  being  un- 
certain as  to  the  Hne  of  conduct  that  will  be  adopted  by  neutrals,  will  often  be  very 
much  hindered  in  his  movements. 

It  would  be  quite  as  important  for  neutrals  to  know  their  obligations.  In 
case  of  war  this  would  spare  them  much  uncertainty  and  painful  hesitancy, 
unforeseen  recriminations,  and  endless  complications,  while  at  the  same  time 
facilitating  the  duty  incumbent  on  them  of  bringing,  by  calm  and  impartial 
conduct,  an  element  of  pacification  into  international  relations.  From  this  stand- 
point, this  question  is  intimately  connected  with  the  task  of  the  Conference. 

While  it  is  impossible  not  to  realize  the  great  difficulty  of  the  question 
presented,  we  must  not  lose  sight  of  the  important  advantage  of  being  definite 
right  now  in  order  to  take,  while  there  is  still  time,  the  legislative  and  other  meas- 
ures necessary  in  order  to  insure  in  time  of  war  the  observation  of  the  duties  in 
question. 

The  proclamation  of  such  an  international  statute  would  facilitate  the  task 
of  Governments,  Parliaments,  the  press,  and  all  well-intentioned  people  whose 
cooperation  is  necessary. 

And  even  if  success  in  formulating  precise  rules  were  not  always  attained, 
it  would  be  useful  at  all  events  to  have  it  stated  by  the  Conference  that  there  is  a 
controversy  on  certain  points.  In  these  cases  pretensions  would  be  less  and 
conduct  more  restrained. 

Finally,  it  would  perhaps  be  easy  to  reach  an  understanding  on  the  mode 
of  procedure,  in  case  of  a  dispute,  with  regard  to  an  alleged  violation  of  neu- 
trality, which  would  be  of  importance  to  weak  States. 

By  dealing  with  all  these  questions  the  Conference  would  get  a  positive 
result,  calculated  to  satisfy  not  only  the  States  that  are  sometimes  belligerents 
and  sometimes  neutrals,  but  also  all  the  more  essentially  pacific  peoples. 

The  President  thanks  his  Excellency  Mr.  Eyschen  for  his  interesting  state- 
ment. He  wonders,  however,  whether  the  subcommission  is  in  a  position  to  make 
an  examination  of  this  very  complicated  question,  its  instructions  being  solely  to 
examine  the  articles  of  the  Brussels  Declaration. 

Chevalier  Descamps  is  of  opinion  that  this  is  a  question  closely  connected 
with  the  purpose  of  the  Conference;  however,  it  would  evidently  be  too  exten- 
sive a  task  for  it  to  prepare  a  code  of  neutrality.  It  might  confine  itself  to 
elucidating  some  questions  connected  more  directly  with  the  articles  of  the 
Brussels  Declaration.  By  acting  thus  the  Commission  would  not  be  exceeding 
its  instructions.  According  to  him,  the  best  way  to  proceed  would  be  to  have  a 
committee  of  several  members  agree  to  examine  whether  and  how  it  would  be 
possible  to  reach  a  result  on  certain  points  coming  within  the  scope  indicated. 

His  Excellency  Mr.  Eyschen  did  not  wish  to  ask  the  Conference  to  pre- 
pare at  once  a  complete  code  of  neutrality.  He  wished  principally  to  point  out 
the  gap  existing  so  as  to  see  whether  it  could  be  filled  at  least  partially.  Al- 
[85]  most  all  disputes  regarding  observation  of  neutrality  arise  from  a  diversity 
of  opinion  as  to  the  rights  and  duties  of  neutrals.  This  uncertainty  is  of 
the  greatest  danger  for  both. 

The  President  expresses  doubts  as  to  the  possibihty  of  realizing  within 
a  few  weeks  this  end  which  the  most  eminent  jurists,  such  as  those  of  the  In- 
stitute of  International  Law,  have  not  been  able  to  attain  in  twenty-five 
years. 


FIFTH  MEETING,  JUNE  3,  1899  497 

Would  not  his  Excellency  Mr.  Eyschen  be  satisfied  if  the  Conference  would 
express  a  wish  to  have  this  question  studied  by  a  future  conference? 

Baron  Bildt  emphasizes  the  importance  of  the  proposition  of  his  Excellency 
Mr.  Eyschen,  whose  purpose  is  great  and  noble,  but  he  questions  whether  this 
subcommission  is  really  the  forum  where  it  ought  to  be  discussed.  In  his  opin- 
ion, this  proposition  comes  within  the  sphere  of  jurisdiction  of  the  Conference  in 
plenary  session.  It  alone  can  designate  a  committee  to  examine  the  proposi- 
tion. The  subcommission  should  confine  itself  to  examining  the  questions  of 
neutrality  connected  strictly  with  the  Brussels  Declaration. 

After  an  exchange  of  views  between  the  President,  his  Excellency  Mr, 
Beemaert,  Chevalier  Descamps,  and  Count  de  Selir,  Mr.  Beldiman  expresses 
himself  as  being  in  favor  of  the  principle  which  his  Excellency  Mr.  Eyschen 
evolved  in  his  statement  regarding  the  question  of  neutrality.  He  thinks  that, 
before  definitely  deciding  whether  it  is  proper  to  enter  upon  the  course  suggested 
by  the  first  delegate  from  Luxemburg,  it  would  be  useful  for  his  Excellency  to 
explain  the  exact  points  which  might  come  within  the  scope  of  the  labors  as- 
signed to  the  subcommission,  and  to  present  to  the  next  meeting  a  more  con- 
crete basis  for  discussion. 

This  motion,  seconded  by  Chevalier  Descamps,  is  carried  by  the  subcom- 
mission. 

His  Excellency  Mr.  Eyschen  declares  that  he  will  endeavor  to  submit  to 
the  subcommission,  for  discussion  at  the  next  meeting,  some  formulated  articles 
on  the  questions  of  neutrality  connected  with  Article  53  and  following  on  the 
order  of  the  day  of  this  meeting. 

Mr.  Odier  declares  that  the  instructions  from  his  Government  do  not  per- 
mit him  to  enter  into  a  discussion  of  the  questions  connected  with  the  rights  and 
duties  of  neutrals.  Nor  do  these  questions,  in  his  opinion,  form  part  of  the 
program  of  the  Conference. 

Mr.  Standoff  thinks  that  the  question  of  neutrality  does  not  come  within 
the  domain  of  the  labors  of  the  Conference.  The  Bulgarian  delegation  will 
therefore  not  express  an  opinion  in  this  regard. 

The  meeting  adjourns. 


SIXTH    MEETING 

JUNE  6,  1899 


Mr.  Martens  presiding. 

The  minutes  of  the  fifth  meeting  are  read  and  adopted. 

The  President  has  a  letter  read  which  was  addressed  to  him  by  his  Excel- 
lency Mr.  Eyschen.  This  letter,  an  extract  from  which  has  been  printed  and 
communicated  to  the  members,  is  couched  in  the  following  terms : 

The  Hague,  June  5,  1899. 
Mr.  President: 

I  have  had  the  honor  to  call  the  attention  of  the  second  subcommission 

to  the  usefulness  of  determining  the  "  Rights  and  duties  of  neutral  States  " 

and  I  had  proposed  a  preliminary  meeting  of  the  delegate  members  who  are 

specially  interested  in  these  questions. 

The  subcommission  was  in  favor  of  confining  itself  to  examining  the  ques- 

186]  tions  coming  within  the  scope  of  the  Brussels  draft  Declaration  concerning 

the  laws  and  customs  of  war.     It  asked  me  to  examine  whether  it  would  be 

possible  to  frame  some  propositions  relating  to  Articles  53  to  56  of  that 

Declaration. 

These  articles  have  in  view  only  the  treatment  of  interned  belligerents 
and  wounded  persons  cared  for  in  neutral  countries. 

Along  this  line  of  ideas  we  might  determine  the  inviolability  of  neutrals 
and  the  principles  relating  thereto,  define  the  obligation  of  a  neutral  State 
not  to  receive  any  belligerents  on  its  territory,  provide  for  cases  of  violation 
of  these  principles  and  the  consequences  which  may  result  therefrom  as 
regards  belligerent  and  neutral  States. 

In  going  into  details  of  wording  I  could  not  fail  to  see  that,  while  this 
subject  may  be  connected  to  some  slight  extent  with  Articles  53  to  56  of  the 
Brussels  Declaration,  it  is  nevertheless  much  more  closely  connected  with 
other  general  principles  of  neutrality,  the  simultaneous  discussion  of  which 
cannot  be  avoided. 

I  persist  in  believing  that  a  general  examination  of  the  questions  relating 
to  neutrality  will  be  necessary  in  future. 

I  should  therefore  be  glad  if  something  could  be  done  along  this  line 
and  in  any  event  if,  in  accordance  with  the  suggestion  of  its  honorable  Presi- 
dent, the  Commission  would  express  a  voeu  that  this  question  be  placed  on 
the  program  of  the  next  congress. 

Please  accept,  Mr,  President,  the  assurances  of  my  high  consideration, 

(Signed)  Eyschen, 
Delegate  from  Luxemburg. 

His  Excellency  Mr.  Eyschen  says  that  it  is  a  duty  of  courtesy  for  him  to 
.^ive  the  assembly  some  explanations  as  to  the  direction  in  which  he  sought  to 

498 


SIXTH  MEETING,  JUNE  6,  1899  499 

dischargee  his  mission.  The  subcommission  had  requested  him  to  formulate  some 
propositions  connected  with  the  articles  concerning  the  internment  of  belligerents 
and  the  passage  of  wounded  in  neutral  countries. 

The  provisions  contained  in  these  articles  constitute  exceptions  to  the  gen- 
eral principle  that  a  neutral  State,  in  its  impartiality,  should  not  receive  or  allow 
one  of  the  belligerents  to  pass  over  its  territory. 

This  general  rule  might  have  been  formulated,  but  on  the  contrary  the  duty 
of  the  belligerent  to  respect  the  territory  of  the  neutral  State  might  also  have 
been  defined,  and  this  principle  might  have  been  reenforced  by  saying  that  the 
inviolability  of  neutral  territory  is  placed,  just  as  are  for  instance  parlementaires, 
tinder  the  safeguard  of  the  military  honor  of  the  belligerents. 

Along  this  line  of  thought  it  was  again  natural  to  provide  for  the  violation 
of  these  principles  and  the  consequences  which  would  arise  therefrom  with  re- 
spect to  the  two  parties.  This  subject  has  already  been  treated  by  Articles  5,  6, 
and  7  of  the  conclusions  adopted  at  The  Hague  by  the  Institute  of  International 
Law  under  date  of  August  30,  1875.  According  to  that  text  it  would  be  neces- 
sary, in  order  to  render  a  Government  responsible,  that  it  should  have  a  hostile 
intention  or  exhibit  real  negligence.  Only  in  serious  and  urgent  cases  and  only 
during  the  existence  of  war  has  the  injured  Power  the  right  to  consider  neutral- 
ity as  abandoned  and  to  resort  to  force  to  defend  itself  against  the  State  which 
has  violated  neutrality.  In  cases  of  a  minor  character  or  where  the  matter  is  not 
urgent,  or  after  the  war  is  over,  complaints  of  this  character  should  be  settled  ex- 
clusively by  arbitration.  This  jurisdiction  decides  ex  aequo  et  bono  on  the  ques- 
tion of  damages  which  the  neutral  State  should,  by  reason  of  its  responsibility, 
pay  to  the  injured  State,  either  for  the  State  itself  or  for  its  nationals. 

It  must  be  admitted  that  a  debate  arising  on  these  various  points  had  neces- 
sarily to  involve  a  discussion  of  the  fundamental  rules  of  neutrality.  The  sub- 
commission  had  declared  previously  that  it  desired  to  avoid  this  result  when  it 
decided  to  adhere  as  far  as  possible  to  an  examination  of  the  Brussels  Declaration, 
which  is  the  only  thing  it  considers  itself  competent  to  do. 

Another  incident  has  come  in  to  modify  the  situation.  Mr.  Eyschen  had 
declared  that  he  wished  to  act  in  this  question  in  concert  with  the  delegates  from 
the  States  which  have  an  interest  similar  to  that  of  Luxemburg.  The  delegate 
from  Switzerland,  Dr.  Roth,  having  had  to  leave  suddenly,  it  was  not  even  possi- 
ble to  attempt  this  agreement. 

The  only  thing,  therefore,  remaining  to  be  done  is  to  prepare  for  the  future. 
The  President  proposes  to  adopt  a  vceu  that  the  question  of  the  regulation 
[87]  of  the  rights  and  duties  of  neutral  States  be  postponed  for  the  study  of  a 
future  conference. 

The  subcommission  accepts  this  resolution  and  mention  will  be  made  thereof 
in  the  minutes. 

The  President  opens  the  discussion  on  Article  53 : 

A  neutral  State  which  receives  on  its  territory  troops  belonging  to  the  belligerent 
armies  shall  intern  them,  as  far  as  possible,  at  a  distance  from  the  theater  of  war. 

It  may  keep  them  in  camps  and  even  confine  them  in  fortresses  or  in  places  set  apart 
for  this  purpose. 

It  shall  decide  whether  officers  can  be  left  at  liberty  on  giving  their  parole  not  to  leave 
the  neutral  territory  without  permission. 

His  Excellency  Mr.  Eyschen,  delegate  from  Luxemburg,  calls  the  attention 


500  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

of  the  subcommission  to  the  pecuHar  situation  in  which  the  treaty  of  London 
of  1867  places  his  country  with  respect  to  the  matter  regulated  by  Article  53. 

The  intention  of  this  treaty  was  to  deprive  Luxemburg  of  its  ancient  strategic 
importance.  It  decided  that  Luxemburg  should  cease  to  be  a  fortified  town,  that 
the  stronghold  should  be  converted  into  an  open  town,  that  the  fortifications  should 
not  be  restored  in  future  and  that  no  military  establishments  should  be  created 
or  maintained.  The  country  is  allowed  to  have  only  the  number  of  troops  neces- 
sary for  the  maintenance  of  order. 

The  result  is  that,  by  a  decision  of  the  Powers,  Luxemburg  is  rendered  un- 
able to  assume  the  same  obligations  as  other  States.  Under  these  circumstances 
Mr.  Eyschen  thinks  he  ought  to  ask  that  note  be  taken  of  the  fact  that  he  called 
the  attention  of  the  Conference  to  Articles  2,  3,  and  5  of  the  London  treaty  of 
May  11,  1867,  and  that  he  intends  to  reserve  to  his  country  all  the  rights  which 
flow  therefrom. 

The  President  takes  note  of  the  declaration  of  his  Excellency  Mr.  Eyschen. 

Mr.  Stanciofif  proposes  to  supplant  the  words  "  shall  intern  them  "  by  "  shall 
remove  them." 

Upon  an  explanation  by  the  President,  he  does  not  insist  on  the  maintenance 
of  his  motion,  and  the  article  is  adopted  without  modification. 

Article  54,  as  worded  in  the  Brussels  draft,  is  likewise  adopted: 

In  the  absence  of  a  special  convention,  the  neutral  State  shall  supply  the  interned  with 
the  food,  clothing,  and  relief  required  by  humanity. 

At  the  conclusion  of  peace  the  expenses  caused  by  the  internment  shall  be  made  good. 

Article  55  is  read : 

A  neutral  State  may  authorize  the  passage  through  its  territory  of  the  wounded  or  sick 
belonging  to  the  belligerent  armies,  on  condition  that  the  trains  bringing  them  shall  carry 
neither  personnel  nor  material  of  war. 

In  such  a  case,  the  neutral  State  is  bound  to  take  whatever  measures  of  safety  and 
control  are  necessary  for  the  purpose. 

Lieutenant  Colonel  von  Khuepach  thinks  it  would  be  suitable  to  add  to  the 
words  "  personnel  nor  material  of  war  "  in  the  first  paragraph  the  words  "  which 
exceed  the  amount  necessary  for  the  care  of  the  sick  and  wounded  of  the  con- 
voy." 

On  the  proposition  of  his  Excellency  Mr.  Beernaert,  who  points  out  that 
such  is  really  the  sense  of  the  article,  it  is  decided  that  the  interpretation  of  the 
Austro-Hungarian  delegate  shall  be  mentioned  in  the  minutes. 

General  Mounier  observes  that  Article  55  may  aflford  a  considerable  ad- 
vantage to  one  of  the  belligerents.  The  passage  of  the  wounded  across  the  neu- 
tral territory  opens  up  the  line  of  communication  of  that  army.  It  may  thus 
communicate  more  easily  with  its  base  of  operations.  There  is  therefore  here 
a  special  advantage  in  favor  of  the  belligerent  who  is  enabled  to  profit  thereby, 
and  no  longer  a  humanitarian  advantage. 

His  Excellency  Mr.  Beernaert  is  of  opinion  that  the  article  was  inspired 
solely  by  humanitarian  interests.  The  only  thing  contemplated  was  the  interest 
of  those  wounded  on  the  field  of  battle. 

General  Mounier  answers  that  the  provision  leaves  to  the  neutral  the  choice 
of  the  belligerent  to  whom  he  wishes  to  grant  this  advantage.     It  will  therefore 


SIXTH  MEETING,  JUNE  6,  1899  501 

be  necessary  to  introduce  into  the  article  a  restriction  as  regards  the  case  of 
vis  major  or  absolute  necessity. 

His  Excellency  Mr.  Eyschen  cites  a  practical  example:  In  1870,  after  the 
three  battles  of  Metz,  Germany  asked  of  Belgium  and  Luxemburg  the  permission 
to  have  the  German  and  French  wounded  pass  over  their  territory.  Belgium, 
after  consulting  England,  refused,  while  Luxemburg  on  the  contrary  granted 
the  passage.  The  reason  for  Germany's  request  was  as  follows :  Three  days  of 
battle  under  a  burning  sun  and  with  a  lack  of  water  rendered  the  sanitary  situa- 
tion most  critical.  It  was  a  question  of  the  interests  of  the  wounded,  and  also  of 
the  general  hygiene  of  the  country. 

After  Sedan,  Germany  renewed  her  request,  and  this  time  Belgium  granted 
it.  In  the  park  of  Bazeilles  there  were  3,000  wounded,  sleeping  day  and  night  in 
the  rain.     Now,  Germany  could  employ  only  the  Belgian  railroads,  and  Belgium 

therefore  performed  a  humane  duty. 
[88]   Mr.  Eyschen  thinks  that  it  is  not  going  too  far  to  say  that  a  neutral  State 
may  authorize  the  passage,  provided  the  general  duties  of  neutrality  are  ob- 
served, which  consist  in  not  granting  to  one  what  is  not  granted  to  the  other. 

His  Excellency  Mr.  Beernaert  answers  General  Mounier  that  he  is  right 
when  he  says  that  a  neutral  who  granted  passage  to  one  of  the  belligerents  without 
treating  the  other  likewise  would  be  showing  partiality  and  violating  the  duties 
of  neutrality ;  but  the  very  text  of  the  article  would  be  contrary  to  such  a  mode 
of  procedure,  for  it  says :  "  to  the  armies  "  and  not  "  to  the  army." 

General  Mounier  insists  on  the  inequality  of  treatment  which  may  arise  from 
Article  55,  according  to  circumstances.  If  the  wounded  Germans  at  Sedan  were 
well  treated,  this  was  owing  to  the  use  of  the  Belgian  railroads. 

The  example  cited  by  his  Excellency  Mr.  Eyschen  shows  that  there  was 
inequality  in  this  case,  as  there  always  will  be.  The  wounded  confined  at  Metz 
could  not  avail  themselves  of  transportation  via  Luxemburg.  We  must  look 
at  the  question  from  a  more  general  standpoint.  If  a  Power  has  the  assistance 
of  a  neutral  railroad  for  its  wounded,  its  strategic  routes  for  the  transportation 
of  its  fresh  troops  are  cleared  to  just  that  extent. 

Chevalier  Descamps  observes  that  the  question  is  to  find  out  whether  there 
is  any  interference  in  the  hostilities  on  the  part  of  the  neutral.  This  is  the  sole 
principle  to  be  kept  in  view.  The  question  must  be  asked,  not  whether  a  more 
or  less  considerable  favor  has  actually  been  accorded,  but  whether  one  of  the 
belligerents  has  been  intentionally  favored. 

Colonel  Gross  von  SchwarzhofF  is  of  General  Mounier's  opinion  as  far 
as  the  technical  question  is  concerned.  However,  there  are  cases  in  which  the 
laws  of  humanity  ought  to  be  more  respected  than  those  of  war.  As  for  that 
matter,  though,  the  inequality  is  but  apparent,  for  the  transportation  of  the 
wounded  of  the  two  armies  gathered  upon  the  field  of  battle  is  done  by  the  victori- 
ous army,  which  constitutes  a  double  burden  for  it. 

General  Mounier  says  this  also  is  his  opinion ;  but  he  merely  remarks  that 
the  choice  is  given  to  the  neutral.  If  the  word  shall  were  substituted  for  the  word 
may  the  question  would  no  longer  be  doubtful. 

His  Excellency  Mr.  Beernaert  protests  against  this  conception.  It  is  im- 
possible to  impose  on  a  neutral  State  the  obligation  to  allow  passage  over  its 
territory.  As  a  matter  of  fact,  the  observation  of  General  Mounier  would  lead 
to  the  suppression  of  the  article. 

The  President  recalls  the  historical  as  well  as  juridical  basis  of  the  provi- 


502  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

sion.  The  principle  was  adopted  by  the  States  represented  at  the  Brussels  Con- 
ference in  1874  out  of  motives  of  humanity,  and  the  Brussels  Declaration  sanc- 
tioned it.  It  is  certain  that,  if  the  neutral  State  does  not  act  impartially  in  ap- 
plying this  article,  the  State  to  whose  detriment  it  has  acted  will  protest.  It  is 
therefore  necessary  to  leave  to  the  neutral  the  privilege  of  performing  this  act  of 
humanity  on  his  own  responsibility. 

Owing  to  these  considerations  he  asks  General  Mounier  not  to  insist  on  the 
modification  of  the  article. 

Mr.  Lammasch  proposes  a  compromise  formula:  "If  the  interests  of 
humanity  require,  the  neutral  shall  authorize  the  passage,  etc." 

His  Excellency  Mr.  Beernaert  and  Chevalier  Descamps  oppose  any  idea  of 
obligation. 

His  Excellency  Count  Nigra  proposes  that  note  be  taken  of  the  declarations 
which  have  been  made ;  the  minutes  will  serve  as  evidence  to  show  the  spirit  in 
which  the  Conference  interprets  this  article. 

His  Excellency  Mr.  Beernaert  acquiesces  in  this  proposition. 

The  President  proposes  the  following  wording:  "The  nation  may,  on  its 
own  responsibility  with  regard  to  the  two  belligerents,  authorize  the  passage, 
etc." 

General  Mounier  would  prefer :  '*  shall  have  a  right  to  refuse." 

It  is  decided  to  refer  the  final  wording  of  the  article  to  a  future  meeting. 

The  discussion  of  Chapters  I,  II  and  IX  of  the  draft  Declaration  of  Brussels 
is  now  taken  up. 

His  Excellency  Mr.  Beernaert  delivers  the  following  address: 

Before  beginning  the  examination  of  Chapters  I,  II,  and  IX  of  the  Brussels 
Declaration,  I  ask  leave  to  make  a  few  remarks  which  seem  to  me  applicable  to 
all  three  in  common. 

The  idea  which  inspired  them  is  wholly  humanitarian,  as  is  the  case  for 
[89]  that  matter  with  the  whole  draft  of  1874.  It  is  a  question  of  reducing 
the  evils  of  an  invasion  as  far  as  possible,  by  regulating  it  or  rather  outlining 
a  path  for  it ;  but  in  order  to  attain  this  end  it  is  desired  that  the  vanquished  shall 
recognize  the  invader  in  advance  as  having  certain  rights  on  his  territory,  and 
that  populations  be  in  some  sort  forbidden  to  mingle  with  the  war. 

Hence,  gentlemen,  arose  grave  difficulties,  which  in  1874  long  arrested  the 
plenipotentiaries  assembled  at  Brussels  and  which  made  it  impossible  for  them 
to  reach  any  result.  As  a  matter  of  fact  there  was  no  convention  at  that  time. 
The  final  protocol  of  the  Conference  offers  its  work,  only  "  as  a  theoretical  and 
preparatory  study,  as  a  conscientious  investigation,  calculated  to  serve  as  the 
basis  for  subsequent  exchange  of  ideas." 

The  work  therefore  remains  to  be  done ;  we  are  now  engaged  in  it  and  we 
have  it  three-fourths  finished,  but  however  great  our  willingness  may  be,  I  am 
afraid  that  if  we  wish  to  regulate  everything  and  to  decide  everything  convention- 
ally, we  shall  meet  the  same  difficulties  as  before. 

In  my  opinion  there  are  certain  points  which  cannot  be  the  subject  of  a 
convention  and  which  it  would  be  better  to  leave,  as  at  present,  under  the  govern- 
ance of  that  tacit  and  common  law  which  arises  from  the  principles  of  the  law 
of  nations. 

I  shall  confine  myself  to  indicating  to  you  two  considerations  in  support  of 
my  views : 


SIXTH  MEETING,  JUNE  6,  1899  503 

I.  Under  the  Brussels  draft  the  conquered  or  invaded  country  recognizes  the 
invader  in  advance  as  having  rights  on  its  territory. 

The  invader  is  to  maintain  the  existing  laws,  or  change  them,  and  he  is  to  en- 
force them  (Article  3), 

The  officials  of  the  invaded  country  are  authorized  to  place  themselves  in 
the  service  of  the  conqueror,  if  they  deem  fit,  and  some  guaranties  are  even 
stipulated  in  their  behalf  in  this  case.     This  is  the  object  of  Article  4. 

The  invader  is  authorized  to  collect  existing  taxes  for  his  benefit  (Article  5), 
and  this  right  is  singularly  amplified  by  Articles  40,  41,  and  42.  Therein  the 
enemy  is  conventionally  authorized  to  levy  new  taxes,  to  make  requisitions,  and 
even  to  impose  fines  on  the  invaded  country. 

Such  a  conventional  engagement  does  not  really  seem  admissible  to  me. 

Not  that  I  wish  to  criticize  the  fact.  Things  have  always  happened  thus, 
and  they  will  doubtless  continue  to  be  the  same,  so  long  as  humanity  does  not 
give  up  war.  But,  although  it  is  natural  for  the  conqueror  to  derive  the  power  to 
act  thus  from  victory,  I  cannot  understand  a  convention  giving  him  the  right. 
Futhermore,  I  believe  that  such  a  notion  would  be  ill  received  by  parliaments, 
which  will  be  called  upon  to  approve  our  work. 

What  I  have  just  said  is  true,  even  in  the  case  of  big  States.  Is  it  con- 
ceivable that  the  State  that  is  beaten  would  grant  rights  to  its  conqueror  in  its 
own  territory,  in  advance  and  in  case  of  war,  and  that  it  would  organize  a  regime 
of  defeat?  Could  it  be  by  the  anticipated  and  written  consent  of  the  conquered 
party  that  the  conqueror  would  levy  taxes  and  impose  fines  or  engage  in  his 
service  officials  whose  first  duty  is  to  be  faithful  to  their  own  country?  I  admit 
that  there  might  in  fact  be  some  advantages  in  this,  that  civil  order  would  be  bet- 
ter preserved,  and  that  the  invaded  populations  would  suffer  less;  but  such  a 
regulation  would  encounter  objections  of  a  moral  and  patriotic  nature,  which 
seem  hardly  surmountable.  It  does  not  seem  to  me  that  one  can  sanction  in  ad- 
vance as  a  right  that  which  necessarily  belongs  to  the  domain  of  fact  and  force. 

And  this  appears  still  more  evident  in  the  case  of  small  countries  which  in  the 
nature  of  things  cannot  be  invaders  but  are  subject  to  being  invaded.  Here 
there  is  not  even  that  uncertainty,  that  reciprocity  of  risks,  which  I  just  pointed 
out. 

As  regards  Belgium,  you  know  that  her  situation  is  peculiar.  She  is  neutral 
and  this  neutrality  is  guaranteed  by  the  great  Powers  and  notably  by  our  power- 
ful neighbors.  We  cannot  therefore  be  invaded,  and  how  could  the  Belgian 
Government  submit  to  the  approval  of  our  legislature  a  convention  providing  for 
the  failure  of  great  States  in  their  pledges  toward  us,  sanctioning  in  advance 
acts  which  could  but  constitute  an  incontestable  abuse  of  force? 

I  therefore  think  that  from  every  standpoint  there  are  situations  here 
which  it  is  better  to  leave  to  the  domain  of  the  law  of  nations,  however  vague  it 
may  be.  We  cannot  here  transform  fact  into  law,  and  this  would  be  the  inevi- 
table result,  for  we  must  regard  the  case  at  once  from  the  standpoint  of  both 
invader  and  invaded.  The  country  occupied  is  placed  under  the  law  of  the 
conqueror;  this  is  a  fact;  it  is  force  and  uncontrollable  force  at  that;  but  we 
cannot  in  advance  legitimate  the  use  of  this  force  and  recognize  it  as  law.  It 
is  certainly  not  possible  for  the  conqueror  to  legislate,  administer,  punish,  and 
levy  taxes  with  the  previous  and  written  consent  of  the  conquered. 

This  can  only  become  regular  upon  the  conclusion  of  peace,  for  only  then, 
if  a  treaty  confirms  the  conquest,  will  new  bonds  of  law  be  established. 


504  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

[90]  Some  have  invoked  the  interest  of  the  occupied  country,  and  especially 
that  of  small  countries. 

Well,  speaking  in  behalf  of  a  small  country,  often  trampled  and  cruelly  so 
by  invasion,  I  prefer  the  continuance  of  the  present  situation  rather  than  the 
peril  of  uncertainties. 

In  my  opinion  we  ought  only  to  adopt  provisions  which,  admitting  the  fact 
without  recognizing  the  right  of  the  conqueror,  would  involve  a  pledge  on  the 
part  of  the  latter  to  exercise  his  right  moderately.  For  instance  there  is  noth- 
ing to  prevent  pledging  oneself  in  advance  to  respect  private  property  and 
buildings  devoted  to  arts  and  charitable  uses,  and  to  levy  taxes  or  make  requisi- 
tions under  certain  given  conditions.  And  such  is  the  spirit  which  has  animated 
all  the  votes  given  up  to  the  present. 

Thus  Articles  3,  4,  and  5  of  Chapter  I  might  be  omitted,  as  well  as  Chapter 
IX,  preserving  the  essential  provisions  of  Chapter  I,  supplemented  by  some 
restrictive  provisions  in  the  matter  of  taxes  and  requisitions. 

II.  The  second  set  of  remarks  which  I  wish  to  make  to  you  apply  rather 
to  Articles  9,  10,  and  11. 

Who  are  the  belligerents?  What  part  may  populations  take  in  the  war, 
either  before  or  after  occupation? 

Here  again  I  observe  in  the  Brussels  draft  the  same  solicitude,  which  is 
very  laudable  in  itself,  namely,  to  reduce  the  evils  of  war  and  the  sufferings 
which  it  involves ;  and  when  such  a  purpose  is  being  pursued  by  one  of  the 
most  powerful  monarchs  in  the  world,  nothing  is  more  worthy  of  praise. 

But  by  undertaking  to  restrict  war  to  States  only,  the  citizens  remaining 
to  a  certain  extent  only  mere  spectators,  would  not  the  risk  be  run  of  reducing 
the  factors  of  resistance  by  weakening  the  powerful  mainspring  of  patriotism? 
Is  it  not  the  first  duty  of  a  citizen  to  defend  his  country,  and  is  it  not  to  the  ful- 
fillment of  this  duty  that  we  all  owe  the  most  beautiful  pages  of  our  national 
history  ? 

On  the  other  hand,  would  not  telling  the  citizens  not  to  mingle  in  the  strug- 
gles in  which  the  fate  of  their  country  is  at  stake  be  further  encouraging  that 
baneful  indifference  which  is  perhaps  one  of  the  gravest  evils  from  which  our 
times  suffer? 

Small  countries  especially  need  to  fill  out  their  factors  of  defense  by  avail- 
ing themselves  of  all  their  resources,  and  you  will  permit  me  to  say  a  few  more 
words  concerning  my  own  country. 

Our  territory  is  extremely  small,  but  its  geographical  situation  is  of  great 
importance  and  this  is  the  reason  why  we  have  so  often  been  the  battlefield  of 
Europe. 

Hence  the  creation  of  our  neutrality,  which  has  not  only  our  own  interest 
in  view. 

We  scrupulously  respect  the  conditions  of  this  neutrality  and  we  do  all  we 
can  in  order  to  be  able  to  enforce  its  respect  in  case  of  necessity. 

Hence  the  great  expenditures  which  we  have  made  at  Antwerp  and  more 
recently  on  the  shores  of  the  Meuse.  We  have  wished  to  remove  even  the  temp- 
tation which  belligerents  might  have  to  use  our  territory  for  strategic  pur- 
poses. 

I  have  already  said  that  it  could  not  be  admitted  that  the  guaranteeing  na- 
tions could  fail  in  their  pledges  toward  us  when  we  shall  certainly  not  give  them 


SIXTH  MEETING,  JUNE  6,  1899  505 

the  least  pretext;  but  here  is  where  we  have  to  assume  that  we  would  be  in- 
vaded. 

Now  let  us  suppose  such  a  contingency  to  occur.  Our  country  is  so  limited 
in  extent  that  it  might  be  occupied  by  surprise  in  almost  its  entirety  in  two  days, 
our  army  being  driven  back  to  Antwerp,  the  redoubt  of  resistance. 

Could  we,  in  view  of  this  grave  situation,  liberate  to  any  extent  our  citizens 
from  their  duty  to  their  country,  by  at  least  seeming  to  advise  them  against  con- 
tributing toward  resistance? 

Would  this  not  truly  be  a  grave  matter?  And  here  again,  would  it  not  be 
better,  in  the  interest  of  all,  not  to  attempt  the  regulation  by  convention  of  in- 
terests which  lend  themselves  only  with  difficulty  to  regulation  by  convention,  but 
rather  to  leave  the  matter  to  the  law  of  nations  and  to  that  incessant  progress  of 
ideas  which  the  present  Conference  and  the  high  initiative  from  which  it  emanates 
will  so  powerfully  encourage!     (Applause.) 

Consequently,  his  Excellency  Mr.  Beernaert  proposes : 

1.  To  omit  Articles  3,  4,  5,  40,  41  and  42. 

2.  To  omit  in  Article  2  the  words  "  being  suspended  and." 

3.  In  Article  6,  paragraph  2,  to  indicate  that  it  can  only  be  a  question  of 
sequestration   (inviolability  already  admitted  for  private  property). 

4.  To  add  in  Article  6  this  new  paragraph :     "  The  plant  of  railways  com- 
[91]  ing  from  neutral  States,  whether  the  property  of  these  States  or  of  com- 
panies, shall  be  sent  back  to  them  as  soon  as  possible,  and  shall  not  be 
utilized  for  military  operations." 
5.  To  insert  two  new  articles : 

A.  The  army  of  occupation  shall  not  be  allowed  to  levy  any  taxes  on  the 
occupied  territory  until  after  a  decision  by  and  on  the  responsibility  of  the 
commander  in  chief  or  of  the  superior  civilian  authority  established  by  him. 

These  taxes  shall  as  far  as  possible  be  levied  in  accordance  with  the  rules 
of  assessment  and  incidence  in  force  in  the  occupied  territories. 

B.  The  occupying  army  shall  not  be  allowed  to  make  any  requisitions  in 
kind  except  by  written  order  of  the  commander  in  the  locality  occupied. 

For  every  requisition  compensation  shall  be  given  or  a  receipt  delivered. 

On  motion  by  Mr.  Beldiman,  it  is  decided  to  have  printed  and  distributed  as 
soon  as  possible  the  interesting  speech  of  his  Excellency  Mr.  Beernaert. 

Mr.  Martens,  having  taken  the  floor,  says: 

Gentlemen  :  Before  beginning  the  discussion  of  the  most  important  articles 
of  the  Brussels  Declaration  of  1874,  I  will  ask  permission  to  submit  some  con- 
siderations to  you  regarding  the  history  of  these  provisions. 

His  Majesty  the  Emperor  Alexander  II,  being  imbued  with  an  idea  of  the 
importance  of  forming  rules  relating  to  the  laws  and  customs  of  war  in  time 
of  peace,  when  the  minds  and  passions  of  people  are  not  inflamed,  took  the  initia- 
tive in  convoking  the  Brussels  Conference  of  1874. 

The  Emperor  had  in  mind  the  well-known  historical  facts,  which  demon- 
strate how  in  war  time  mutual  recriminations  and  mutual  hatred  aggravate  the 
inevitable  atrocities  of  warfare.  Moreover,  the  uncertainty  of  the  belligerents 
regarding  the  laws  and  customs  of  war  provokes  not  only  hatred  but  also  use- 
less cruelties  committed  on  the  field  of  battle. 

The  initiative  of  my  august  sovereign  was  not  all  due  to  a  new  idea.  Al- 
ready during  the  War  of  Secession,  had  President  Lincoln  directed  Professor 


506  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

LiEBER  to  prepare  instructions  for  the  armies  of  General  Grant.  These  regu- 
lations not  only  resulted  in  great  benefit  to  the  United  States  troops,  but  also 
to  those  of  the  Southern  Confederacy.  Those  are  circumstances  in  which  the 
very  force  of  events  called  forth  the  idea  of  regulating  the  laws  of  war.  The 
example  had  been  set.  The  Brussels  Declaration  brought  about  by  Alexander  II 
was  the  logical  and  natural  development  thereof. 

The  importance  of  that  declaration  consists  in  the  following:  For  the  first 
time  an  agreement  was  to  be  established  between  Powers  regarding  the  laws 
of  war  really  binding  on  the  armies  of  the  belligerent  States,  in  order  to  shield 
the  innocent,  peaceful,  and  unarmed  populations  against  useless  cruelties  of  war 
and  the  evils  of  invasion  where  not  required  by  the  imperious  necessities  of  the 
war. 

It  was  said  in  1.874,  and  it  has  been  said  to-day,  that  it  is  preferable  to  leave 
these  questions  in  "  a  vague  state  and  in  the  exclusive  domain  of  the  law  of 
nations."  But  is  this  opinion  quite  just?  Is  this  uncertainty  advantageous  to 
the  weak?  Do  the  weak  become  stronger  because  the  duties  of  the  strong  are 
not  determined  ?  Do  the  strong  become  weaker  because  their  rights  are  specifically 
defined  and  consequently  limited?  I  do  not  think  so.  I  am  fully  convinced 
that  it  is  particularly  in  the  interest  of  the  weak  that  these  rights  and  duties  be 
defined.  It  is  impossible  to  compel  the  stronger  to  respect  the  rights  of  the 
weaker  if  the  duties  of  the  latter  are  not  recognized. 

Those  who  have  caused  the  idea  of  humanity  to  progress  in  the  practice  of 
war  are  not  so  much  the  philanthropists  and  publicists  as  the  great  captains, 
such  as  Gustavus  Adolphus,  who  have  seen  war  with  their  own  eyes.  Being 
obliged  to  place  a  curb  on  the  inflamed  passions  of  their  soldiers,  they  inaugurated 
a  discipline  in  their  armies,  which  was  the  source  of  the  regulation  of  the  usages 
of  war,  which  discipline  was  all  the  more  necessary  in  case  of  invasion  of  a 
hostile  territory. 

If  there  are  laws  of  war  —  and  no  one  denies  this  fact  —  it  is  absolutely 
necessary  to  come  to  an  agreement  in  determining  them. 

Being  animated  by  the  desire  to  bring  our  intelligence  into  play  in  examin- 
ing these  laws  and  customs  of  war,  we  have  thus  far  worked  in  concert  along 
this  line,  and  we  have  been  able  to  solve  most  of  the  questions  submitted 
to  us. 

Now  that  we  have  reached  the  most  important  articles  of  the  Brussels 
Declaration,  it  would  be  a  pity  to  leave  in  a  vague  condition  the  questions  which 
relate  to  the  first  articles  on  occupation  and  combatants. 

I  know  it  is  said  that  we  ought  to  leave  the  solution  of  these  questions 
[92]  to  the  practice  of  war,  to  the  generally  recognized  principles  of  the  law  of 
nations,  and,  finally,  to  the  hearts  of  the  captains,  commanders  in  chief, 
and  military  authorities.  But,  gentlemen,  the  heart  has  purposes  which  the  mind 
does  not  understand  and  in  time  of  war  only  one  purpose  is  recognized,  and 
that  is  the  purpose  of  the  war.  I  bow  with  respect  before  the  great  deeds  which 
the  human  heart  has  performed  during  war  and  on  the  field  of  battle.  The  Red 
Cross  is  the  best  proof  of  this.  But,  gentlemen,  the  noble  sentiments  of  the 
human  heart  unfortunately  very  often  remain  a  closed  book  in  the  midst  of 
combats. 

Our  present  task  is  to  remind  peoples  of  their  duties,  not  only  in  time  of 
peace  but  also  in  time  of  war.  Our  mission  has  been  well  defined  from  the  very 
beginning  of  our  common  labors:  we  wish  to  elaborate,  in  a  spirit  of  concord, 


SIXTH  MEETING,  JUNE  6,  1899  507 

humanity,  and  justice,  the  uniform  bases  for  the  instructions  which  the  Govern- 
ments will  pledge  themselves  to  give  to  their  armed  land  forces.  We  have 
always  recognized  the  imperious  law  of  the  inexorable  necessities  of  war.  We 
do  not  wish  either  to  encroach  on  the  rights  of  military  independence  of  States, 
or  to  close  our  eyes  before  the  differences  which  exist  in  the  situation  of  States 
represented  here,  at  the  Conference. 

However,  permit  me  to  believe  that  we  are  unanimous  in  the  desire  to  miti- 
gate, as  far  as  possible,  the  cruelties  and  disasters  in  international  conflicts  which 
are  not  in  any  wise  rendered  inevitable  by  the  necessities  of  war.  It  is  our 
unanimous  desire  that  the  armies  of  the  civilized  nations  be  not  simply  provided 
with  the  most  murderous  and  perfected  weapons,  but  that  they  shall  also  be  im- 
bued with  a  notion  of  right,  justice,  and  humanity,  binding  even  in  invaded  ter- 
ritory and  even  in  regard  to  the  enemy. 

The  Brussels  Declaration  should  be  more  than  an  international  act.  It 
should  be  an  act  of  education  which  is  to  enter  in  future  into  the  program  of 
military  instruction.  Such  should  be  the  purpose  of  military  instruction,  and 
such  should  be  the  supreme  object  of  our  common  efforts. 

Permit  me  to  add  another  observation.  Let  us  suppose  that  we  should  not 
reach  any  understanding  regarding  the  main  articles  of  the  Brussels  Declaration. 
The  result  would  be  fatal  and  disastrous  in  the  highest  degree  to  the  whole  of 
our  work,  for  then  belligerent  Governments  and  military  leaders  would  say  to 
themselves :  "  Twice,  in  1874  and  1899,  two  great  international  Conferences  have 
gathered  together  the  most  competent  and  eminent  men  of  the  civilized  world  on 
the  subject.  They  have  not  succeeded  in  determining  the  laws  and  customs  of 
war.  They  have  separated,  leaving  utter  vagueness  for  all  these  questions. 
These  eminent  men,  in  discussing  these  questions  of  the  occupation  and  the  rights 
and  duties  of  invaded  territories,  have  found  no  other  solution  than  to  leave 
everything  in  a  state  of  vagueness  and  in  the  domain  of  the  law  of  nations !  How 
can  we,  the  commanders  in  chief  of  the  armies,  who  are  in  the  heat  of  action, 
find  time  to  settle  these  controversies,  when  they  have  been  powerless  to  do  so  in 
time  of  peace,  amid  world-wide  absolute  calm  and  when  the  Governments  had 
met  for  the  purpose  of  laying  down  solid  bases  for  a  common  life  of  peace  and 
concord  ?  " 

Under  these  circumstances  it  would  be  impossible  to  deny  to  belligerents  an 
unlimited  right  to  interpret  the  laws  of  war  to  suit  their  fancy  and  convenience. 

I  wish  to  apologize,  gentlemen,  for  having  set  forth  my  ideas  at  such  length 
on  this  subject,  but  I  did  so  because  they  spring  from  my  most  deep-seated  con- 
victions. 

To  leave  uncertainty  hovering  over  these  questions  would  necessarily  be  to 
allow  the  interests  of  force  to  triumph  over  those  of  humanity.  In  calling 
your  kind  and  serious  attention  to  these  considerations,  I  have,  gentlemen,  but 
one'  desire,  namely :  that  you  may  fully  realize  the  inevitable  consequences  which 
will  arise  from  sacrificing  the  vital  interests  of  peaceful,  unarmed  populations 
to  the  risk  of  reasons  of  war  and  the  law  of  nations.  These  consequences  will 
be  fatal  and  disastrous  in  the  highest  degree,  for  the  Hague  Conference  will  then 
have  shown  to  the  public  opinion  of  the  civilized  world  once  more  the  incapacity 
of  the  Governments  to  define  the  laws  of  war,  for  the  sake  of  limiting  its  atroci- 
ties and  cruelties. 

It  is  for  you,  gentlemen,  to  judge  of  the  deplorable  effect  this  would  have  on 
the  public  opinion  of  the  civilized  world. 


508  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

It  is  for  you  to  answer  the  question :     To  whom  will  doubt  and  uncertainty 
be  of  advantage,  to  the  weak  or  to  the  strong? 

Mr.  Bihourd  remarks  that  two  very  different  theses  have  been  expressed 
on  the  subject  of  the  first  articles  of  the  Brussels  draft. 

The  speech  of  his  Excellency  Mr.  Beernaert  summarizes  one  and  will  be 
printed ;  as  to  the  other,  set  forth  in  the  pithy  and  eloquent  response  of  the  honor- 
able President,  it  differs  in  some  points  from  the  preceding, 
[93]   It  would  be  desirable  to  postpone  until  Thursday  the  discussion  of  these 
two  theses  in  order  that  the  subcommission  may  pass  on  them  with  a  full 
knowledge  of  the  subject. 

This  motion  is  adopted. 

On  an  observation  by  Colonel  Gilinsky  it  is  decided  that  the  speech  of 
Mr.  Martens  shall  be  printed. 

The  meeting  adjourns- 


SEVENTH    MEETING 

JUNE  8,  1899 


Mr.  Martens  presiding. 

The  minutes  of  the  sixth  meeting  are  read  and  adopted. 

The  President  announces  that  an  agreement  has  been  reached  between  his 
Excellency  Mr.  Beernaert  and  General  Mounier,  as  follows:  the  first  two 
paragraphs  of  Article  55  are  to  be  kept  as  now  worded,  while  there  is  to  be  added 
thereto  a  third  paragraph  drawn  up  as  follows : 

Once  the  sick  or  wounded  have  been  admitted  into  the  neutral  territory, 
they  cannot  be  returned  to  any  other  than  their  original  country. 

Moreover,  in  order  to  state  the  spirit  in  which  this  solution  of  the  question 
Was  reached,  his  Excellency  Mr.  Beernaert  proposes  that  the  following  explana- 
tion, adopted  by  General  Mounier,  be  inserted  in  the  minutes: 

This  article  has  no  other  aim  than  to  provide  that  humane  and  hygienic 
considerations  may  induce  a  neutral  State  to  allow  wounded  or  sick  soldiers 
to  pass  across  its  territory  without  failing  in  its  duties  of  neutrality. 

It  results  from  the  text  itself  that  the  same  stand  would  have  to  be 
taken  in  regard  to  both  belligerent  armies. 

This  form  of  wording  is  indorsed  by  his  Excellency  Count  Nigra. 
The  subcommission  approves  the  insertion  of  this  explanation  in  the  minutes 
and  adopts  the  wording  proposed  for  Article  55. 

The  discussion  of  Chapter  I  of  the  Brussels  draft  is  now  taken  up,  entitled 
"  On  military  authority  over  the  territory  of  the  hostile  State." 
Article  1  is  read: 

Territory  is  considered  occupied  when  it  is  actually  placed  under  the  authority  of  the 
hostile  army. 

The  occupation  extends  only  to  the  territory  where  such  authority  has  been  established 
and  can  be  exercised. 

Colonel  Gross  von  Schwarzhoff  asks  that  the  second  paragraph  be  stricken 
out. 

He  thinks  it  is  necessary  to  provide  for  the  case  in  which  a  belligerent  has 
effectively  established  his  authority  in  a  territory,  but  in  which  communications 
between  the  army  or  the  occupying  bodies  and  the  other  forces  of  the  belligerent 
are  interrupted  and  in  which  uprisings  occur  in  that  territory  and  are  momentar- 
ily successful. 

General  den  Beer  Poortugael  says  that  this  amendment  has  too  extensive  a 

509 


510  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

scope.     An  occupation  can  be  recognized  only  when  the  authority  of  the  beUiger- 
ent  is  actually  established. 

Colonel  Gross  von  Schwarzhoff  remarks  that  the  word  *'  actually  "  occurs 
already  in  the  first  paragraph. 

His  Excellency  Mr.  Beernaert  is  of  opinion  that  the  first  paragraph  is  only 

explained  in  the  second,  and  that  standing  alone  it  would  be  meaningless. 

[94]   Chevalier  Descamps  observes  that  the  Institute  of  International  Law  went 

further  than  the  Brussels  Conference  and  placed  more  restrictions  on  the 

notion  of  occupation.     He  reads  Article  41  of  the  Oxford  Manual  containing  the 

definition  of  "  occupied  territory."  ^ 

He  thinks  that  the  omission  of  paragraph  2  would  be  contrary  to  all  estab- 
lished ideas.  It  is  impossible  to  recognize  an  occupation  which  does  not  exist. 
What  must  be  absolutely  preserved  is  the  notion  of  occupation. 

Colonel  Gilinsky  emphasizes  the  military  standpoint:  an  army  considers  a 
territory  occupied  when  it  finds  itself  therein  either  with  the  bulk  of  its  troops 
or  with  detachments,  and  when  the  lines  of  communication  are  insured.  On 
this  territory  the  occupying  army  leaves  troops  to  protect  its  communications 
in  the  rear.  These  troops  are  often  not  very  numerous,  so  that  an  uprising  be- 
comes possible.  However,  the  fact  of  such  an  uprising  breaking  out  does  not 
prevent  the  occupation  from  being  considered  as  actually  existing.  In  order  to 
take  this  military  standpoint  into  account  he  reminds  the  high  assembly  of  the 
explanation  adopted  in  1874  by  the  Brussels  Conference  at  its  meeting  of 
August  12,^  the  text  of  which  is  as  follows: 

We  may  consider  occupation  as  established  when  a  part  of  the  occupy- 
ing army  has  secured  its  positions  and  its  line  of  communications  with  the 
other  bodies.  This  being  done,  it  is  in  a  position  to  cope  with  the  army  of 
the  occupied  country  and  the  uprisings  of  the  population. 

His  Excellency  Mr.  Beernaert  remarks  that  at  Brussels,  after  long  discus- 
sions, nothing  better  was  found  than  the  wording  of  Article  1  as  now  before  the 
assembly.     In  his  opinion  it  should  be  preserved  for  want  of  a  better. 

The  President  says  that  note  will  be  made  in  the  minutes  of  the  explana- 
tion given  of  the  miUtary  standpoint  by  Colonel  Gilinsky.  His  Excellency  Mr. 
Beernaert  considers  this  explanation  only  as  a  personal  opinion  of  Mr.  Gilinsky. 
As  a  matter  of  fact,  it  by  no  means  appears  from  the  proceedings  of  the  Brussels 
Conference  that  it  espoused  the  explanation  cited.  It  is  a  question  of  a  sentence 
of  General  Leer. 

Colonel  Gross  von  Schwarzhoff  proposes,  as  a  concession,  to  add  the  word 
'*  established  "  in  the  first  paragraph  to  the  word  "  authority." 

His  Excellency  Mr,  Beernaert  considers  that  this  proposal  does  not  con- 
stitute a  concession. 

Colonel  Gross  von  Schwarzhoff  agrees  with  Colonel  Gilinsky,  and  would 
like  to  have  his  personal  explanation  adopted  by  the  subcommission. 

1  This  article  reads  as  follows :  Territory  is  considered  occupied  when,  as  the  conse- 
quence of  invasion  by  hostile  forces,  the  State  to  which  it  belongs  has  actually  ceased  to 
exercise  its  ordinary  authority  therein,  and  the  invading  State  is  alone  in  a  position  to  main- 
tain order  there.  The  limits  within  which  this  state  of  affairs  exists  determine  the  extent 
and  duration  of  the  occupation. 

2  See  Actes  de  la  Conference  de  Bruxelles  1874,  p.  105. 


SEVENTH  MEETING,  JUNE  8,  1899  511 

Colonel  Gilinsky  declares  that  he  would  also  like  to  have  this  done. 

The  President  recommends  to  the  attention  of  the  subcommission  this  ex- 
planation given  from  the  military  standpoint. 

General  den  Beer  Poortugael  remarks  that  the  expression  "  has  secured  its 
positions,  etc."  is  too  vague.  The  principle  involved  seems  to  him  clear  and  easy 
to  state.  When  an  authority  has  not  power  enough  to  maintain  itself,  it  is  not 
established  and  there  is  no  occupation. 

Mr.  Rolin  proposes  a  compromise  text  reproducing,  with  slight  modifications,, 
Article  41  of  the  Oxford  Manual : 

Territory  is  considered  occupied  by  the  enemy  State  when,  as  the  conse- 
quence of  invasion  by  hostile  forces,  the  State  to  which  this  territory  be- 
longs has  actually  ceased  to  exercise  its  ordinary  authority  therein.  The 
limits  within  which  this  state  of  affairs  exists  determine  the  extent  and 
duration  of  the  occupation. 

Mr.  Rolin  thinks  that  the  double  fact,  easily  verified,  of  the  invasion  of  the 
territory  and  the  retirement  of  the  legal  authorities,  may  serve  best  to  determine 
whether  there  is  occupation.  In  the  case  contemplated  by  the  proposed  text, 
there  is  necessarily  an  occupation  by  the  enemy,  since  there  is  no  longer  more 
than  one  single  authority  that  can  be  exercised,  and  that  is  the  authority  of  the 
enemy. 

His  Excellency  Mr.  Beernaert  persists  in  believing  that  the  definition  of 
1874  is  preferable.     The  retirement  of  the  legal  authorities  is  a  negative  event 

which  may  very  easily  occur  without  there  being  an  occupation. 
[95]   Colonel  Gross  von  Schwarzhoff  thinks  that  he  can  endorse  the  proposition 
of  Mr.  Rolin. 

His  Excellency  Mr.  Beernaert  thinks  that  the  change  introduced  by  Mr. 
Rolin  in  the  Oxford  text  removes  even  the  last  guaranty  which  the  latter  af- 
forded. 

Jonkheer  van  Karnebeek  observes  that  the  draft  proposed  by  Mr.  Rolin 
lacks  precision.  It  seems  to  him  that  it  is  not  in  conformity  with  the  first  para- 
graph of  Article  1.  According  to  the  text  of  Mr.  Rolin,  the  word  "  invasion  " 
relates  to  the  enemy  State ;  whereas,  as  clearly  indicated  by  the  text  of  1874,  it 
is  a  question  of  invasion  of  the  enemy  territory. 

Mr.  Rolin,  in  order  to  avoid  the  ambiguity  pointed  out  by  Mr.  van  Karne- 
beek, eliminates  the  words  "  by  the  enemy  State  "  after  the  word  "  occupied  " 
in  his  amendment. 

Chevalier  Descamps  observes  that,  according  to  Mr.  Rolin's  wording,  there 
might  be  occupation  without  the  territory's  being  really  occupied. 

Mr.  Standoff  remarks  that  in  case  of  occupation,  the  enemy  ought  to  warn 
the  inhabitants  of  the  country  of  his  occupation  of  the  conquered  ground. 

Mr.  Leon  Bourgeois  states  that  all  the  propositions  thus  far  made  in  regard 
to  Article  1  relate  only  to  its  details  and  not  to  its  general  idea.  Colonel  Gilin- 
sky, for  instance,  speaks  only  of  defending  communications;  now,  it  is  likewise 
a  question  of  positions.  Mr.  Rolin  also  confines  himself  to  defining  a  particular 
case,  viz.,  "  the  retirement  of  the  legal  authorities,"  without  clearly  stating  what 
authorities  are  referred  to.  Could  it  be  said  that  the  legal  authorities  have 
withdrawn  when  only  the  mayors  continue  to  exercise  authority?  It  would  seem 
to  him  more  prudent  to  preserve  the  wording  adopted  in  1874  after  mature  de- 
liberations by  all  the  representatives  of  the  different  Powers.     It  would  not  be 


512  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

desirable  to  give  Article  1,  the  pinnacle,  as  it  were,  of  our  work,  a  new,  hastily 
prepared,  and  certainly  incomplete  definition  which  might  give  rise  to  serious 
difficulties  of  interpretation. 

Mr.  Rolin  wishes  to  define  the  conditions  under  which  he  formulated  his 
proposition. 

In  view  of  the  two  opinions,  one  of  which  is  that  the  whole  article  ought 
to  be  maintained,  and  the  other  that  the  second  paragraph  should  be  dropped,  he 
endeavored  to  find  a  compromise  solution.  In  case  it  should  be  decided  to  main- 
tain the  entire  article,  he  withdraws  his  proposal. 

Mr.  Lammasch  proposes  the  following  wording :  "  Territory  is  considered 
occupied  in  so  far  as  it  is  actually  placed  under  the  established  authority  of  the 
hostile  army." 

Chevalier  Descamps  thinks  that  this  wording  does  nothing  but  introduce 
the  original  text  of  Article  1  in  another  form.  Under  these  circumstances  it 
would  be  better  to  keep  the  original  text. 

Mr.  Lammasch  would  be  satisfied  if  Article  1  were  preserved  as  now 
worded;  his  proposal  was  only  made  for  reconciliation. 

The  President  thinks  he  ought  to  recall  the  fact  that,  as  Mr.  Bourgeois 
said,  this  article  was  the  result  of  thorough  dehberations  at  the  time  of  the 
Brussels  Conference.  After  four  meetings,  the  military  men,  diplomats,  and 
jurists  agreed  that  this  wording  was  the  best.  This  circumstance  must  be  taken 
into  account. 

Colonel  Gilinsky  observes  that  he  made  no  motion.  He  wished  merely  to 
support  the  opinion  expressed  by  Colonel  Gross  von  Schwarzhoff  by  point- 
ing out  the  difference  between  the  idea  as  viewed  from  the  military  standpoint 
and  as  viewed  from  the  legal  standpoint. 

Colonel  Gilinsky  declares  that  he  is  not  opposed  to  maintaining  Article  1. 

Colonel  Gross  von  Schwarzhoff  declares  that,  in  view  of  the  general  opin- 
ion in  favor  of  maintaining  the  article,  he  no  longer  insists  on  the  omission  of 
paragraph  2. 

Article  1  is  unanimously  adopted  as  worded  in  1874. 

Article  2  is  read: 

The  authority  of  the  legitimate  Power  being  suspended  and  having  in  fact  passed  into 
tlie  hands  of  the  occupant,  the  latter  shall  take  all  the  measures  in  his  power  to  restore  and 
ensure,  as  far  as  possible,  public  order  and  safety. 

His  Excellency  Mr.  Beernaert  proposes  to  strike  out  the  words  '*  being  sus- 
pended and." 

This  proposition  and  the  article  thus  amended  are  adopted. 
Article  3  is  read: 

With  this  object  he  shall  maintain  the  laws  which  were  in  force  in  the  country  in  time 
of  peace,  and  shall  not  modify,  suspend  or  replace  them  unless  necessary. 

The  President  recalls  that  his  Excellency  Mr.  Beernaert  has  proposed  that 
Article  3  be  omitted  as  superfluous. 

General  den  Beer  Poortugael  supports  this  view  of  his  Excellency  Mr. 
Beernaert. 

The  President  admits  that  Article  3  is  contained  in  part  in  Article  2. 
■[96]  Mr.  Lammasch  deems  that  the  article  nevertheless  has  a  certain  value. 


SEVENTH  MEETING,  JUNE  8,  1899  51S 

especially  as  far  as  weak  States  are  concerned  and  by  reason  of  the  restric- 
tion introduced  by  the  words  "  unless  necessary."  He  is  in  favor  of  keeping  the 
article. 

Baron  Bildt  is  of  opinion  that  it  is  necessary  to  adopt  the  principle  of 
avoiding  as  far  as  possible  any  modifications  of  the  text  adopted  at  Brussels. 
The  article  is  humanitarian  and  there  is  no  reason  for  abolishing  it.  From  this 
standpoint,  and  not  having  yet  heard  any  clear  and  decisive  argument  in  favor 
of  omitting  the  article,  he  is  of  opinion  that  it  ought  to  be  maintained. 

His  Excellency  Mr.  Beernaert  objects  that  it  is  impossible  to  attribute  cer- 
tain powers  in  advance  to  the  victor  over  the  territory  of  the  defeated  by  means 
of  a  convention;  on  the  other  hand,  the  proposed  provision  affords  only  an  ap- 
parent guaranty  since  the  invader  will  have  the  privilege  of  modifying,  extend- 
ing and  superseding  the  existing  laws,  in  other  words,  he  will  do  as  he  pleases. 

Baron  Bildt  is  rather  inclined  to  side  with  Mr.  Martens  who,  in  his  elo- 
quent speech,  showed  plainly  how  advantageous  it  is  to  the  weak  and  the  con- 
quered to  find  the  obligations  of  the  victor  limited  and  circumscribed.  Doubt 
and  uncertainty  can  be  of  advantage  only  to  the  strong.  The  article  presents  this 
advantage,  that  while  it  allows  the  victor  to  be  the  judge,  it  requires  that  there 
should  be  a  necessity  to  take  the  measures  in  question.  It  must,  however,  be 
admitted  that  the  question  here  is  rather  one  of  a  moral  obligation. 

Mr.  Stancioff  says  that  at  all  events  it  will  be  necessary  to  add  the  restrict- 
ing word  "  imperious  "  to  the  too  vague  word  "  necessity." 

General  Zuccari  remarks  that  as  the  different  amendments  of  his  Excel- 
lency Mr.  Beernaert  form  an  aggregate,  it  would  be  better  to  suspend  the  vote 
until  each  of  them  has  been  discussed  separately. 

Mr.  Beldiman  asks  to  make  an  observation  regarding  the  order  of  discus- 
sion similar  to  that  made  by  General  Zuccari.  The  propositions  of  his  Excel- 
lency Mr.  Beernaert  constitute  an  aggregate.  It  is  impossible  to  vote  for  the 
abolition  of  one  article  without  first  agreeing  as  to  the  principle  which  dominates 
them  all.  Otherwise,  a  premature  judgment  would  be  formed  as  to  the  decision 
affecting  the  propositions  as  a  whole.  In  treating  one  of  them  it  is  necessary  to 
keep  the  others  in  mind.     Accordingly,  he  proposes  that  the  vote  be  postponed. 

Mr.  Motono  does  not  think  that  there  is  such  a  connection  between  the 
articles  to  which  the  amendments  of  his  Excellency  Mr.  Beernaert  relate  as 
would  render  it  impossible  to  reach  a  decision  on  each  of  them  separately. 

The  President,  in  agreement  with  his  Excellency  Mr.  Beernaert,  thinks 
that  the  articles  ought  to  be  discussed  successively,  as  a  deliberation  and  vote  on 
them  as  a  whole  would  become  too  complicated. 

Mr.  Leon  Bourgeois  states  that,  inasmuch  as  a  discussion  on  Articles  3, 
4,  and  5  as  a  whole  would  on  the  one  hand  be  too  difficult,  and  since  on  the  other 
hand  a  common  principle  dominates  them  all,  the  votes  given  separately  on  each 
of  them  ought  to  be  considered  as  tentative.  It  is  necessary  to  allow  a  second 
discussion  as  a  preparation  for  a  confirming  vote. 

This  mode  of  proceeding  is  approved. 

Mr.  Odier  wishes  to  explain  in  what  sense  he  will  be  able  to  agree  with  the 
proposal  of  his  Excellency  Mr.  Beernaert  to  eliminate  Articles  3,  4  and  5. 
While  adhering  to  the  humane  principle  which  influenced  the  drafting  of  these 
articles,  and  while  hoping  that  the  occupying  authority  may  be  exercised  in  the 
most  moderate  manner,  he  deems  it  impossible  to  ask  the  conquered  State  to  sub- 


514  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

scribe  in  advance,  by  means  of  a  convention,  to  measures  v^hich  might  be  vexing 
to  the  populations ;  it  is  also  impossible  to  delegate,  so  to  speak,  to  the  occupant 
the  powers  which  the  de  jure  State  has  been  forced  to  relinquish.  It  is  for  this 
fundamental  reason  that  Mr.  Odter  is  able  to  declare  himself  in  accord  with  the 
proposal  to  eliminate  the  articles  indicated  by  his  Excellency  Mr.  Beernaert, 
but  on  condition,  however,  that  it  be  stated  in  the  minutes  that,  if  this  subject 
could  be  regulated  by  means  of  texts  of  conventions  the  spirit  in  which  they 
should  be  adopted  as  articles  or  conventions  ought  to  be  the  one  which  prevailed 
during  the  drafting  of  these  provisions. 

His  Excellency  Mr.  Eyschen  states  the  grounds  of  his  vote.  He  will  vote 
in  favor  of  the  omission  proposed  by  his  Excellency  Mr.  Beernaert,  but  he 
wishes  to  point  out  that  in  his  opinion  the  duties  of  economic,  legislative  and 
military  guardianship  which  devolve  upon  the  occupant  ought  to  be  construed  in 
the  sense  of  the  Brussels  Declaration. 

He  desires  that  his  declaration  be  inserted  in  the  minutes. 

His  Excellency  Mr.  Beernaert  says  that  he  agrees  with  the  declaration  of 
Mr.  Odier  and  of  his  Excellency  Mr.  Eyschen. 

The  President  has  a  vote  taken. 

The  following  voted  to  eliminate  Article  3 :     United  States,  Belgium,  China, 
Spain,  Luxemburg,  Netherlands,  Persia,  Russia,  Siam  and  Switzerland. 
{97]   The  following  voted  to  maintain  Article  3 :     Germany,  Austria-Hungary, 
Denmark,  France,  Great  Britain,  Italy,  Japan,  Mexico,  Portugal,  Serbia, 
Sweden  and  Norway,  Turkey  and  Bulgaria. 

Roumania  reserves  its  vote. 

It  is  understood  that  this  vote,  like  those  on  the  two  following  articles,  will 
be  considered  tentative,  as  Mr.  Bourgeois  mentioned  upon  voting. 

Article  3  is  therefore  tentatively  maintained  by  a  vote  of  13  to  10,  with  one 
abstention. 

The  President  puts  to  vote  the  proposition  of  his  Excellency  Mr.  Beernaert 
to  eliminate  Article  4  worded  as  follows : 

The  functionaries  and  employees  of  every  class  who  consent  on  his 
invitation  to  continue  their  functions  shall  enjoy  his  protection.  They  shall 
not  be  dismissed  or  subjected  to  disciplinary  punishment  unless  they  fail  in 
fulfilling  the  obligations  undertaken  by  them,  and  they  shall  not  be  prosecuted 
unless  they  betray  their  trust. 

The  following  voted  to  eliminate  Article  4 :  United  States,  Belgium,  China, 
Spain,  France,  Italy,  Luxemburg,  Mexico,  Netherlands,  Persia,  Portugal,  Russia, 
Siam,  Switzerland  and  Bulgaria. 

The  following  voted  to  maintain  Article  4:  Germany,  Austria-Hungary, 
Denmark,  Great  Britain,  Japan,  Serbia  and  Sweden  and  Norway. 

Roumania  and  Turkey  refrained  from  voting. 

Article  4  is  therefore  tentatively  eliminated  by  a  vote  of  15  to  7,  with  two 
abstentions. 

Messrs.  Bourgeois  and  Zenil  explained  their  votes  by  saying  that  in  their 
opinion  Article  4  is  not  of  the  same  nature  as  Article  3. 

The  President  finally  puts  to  vote  the  elimination  of  Article  5,  proposed  like- 
wise by  his  Excellency  Mr.  Beernaert  : 

The  army  of  occupation  shall  only  collect  the  taxes,  dues,  duties  and 


SEVENTH  MEETING,  JUNE  8,  1899  515 

tolls  imposed  for  the  benefit  of  the  State,  or  their  equivalent,  if  it  is  impossible 
to  collect  them,  and,  as  far  as  possible,  in  accordance  with  the  existing  forms 
and  practice.  It  shall  devote  them  to  defraying  the  expenses  of  the  admin- 
istration of  the  country  to  the  same  extent  as  the  legitimate  Government  was 
so  obligated. 

The  following  voted  to  eliminate  Article  5 :  United  States,  Belgium,  China, 
Spain,  France,  Luxemburg,  Persia,  Russia,  Siam,  Switzerland  and  Bulgaria. 

The  following  voted  to  maintain  Article  5 :  Germany,  Austria-Hungary, 
Denmark,  Great  Britain,  Italy,  Japan,  Mexico,  Netherlands,  Portugal,  Serbia  and 
Sweden  and  Norway. 

Roumania  and  Turkey  reserved  their  vote. 

Eleven  votes  were  therefore  cast  in  favor  of  maintaining  Article  5  and 
eleven  against,  two  votes  being  reserved. 

His  Excellency  Mr.  Beernaert  says  that  as  his  propositions  regarding  the 
elimination  of  Articles  40  to  42  and  the  introduction  of  new  additional  articles 
are  but  the  development  of  the  principle  on  which  are  based  his  propositions  in 
regard  to  Articles  3,  4,  and  5,  it  would  perhaps  be  preferable  to  vote  also  tenta- 
tively on  the  latter. 

The  wording  of  Article  3,  which  was  tentatively  maintained,  is  now  taken 
up. 

Mr.  Odier  proposes  the  following  wording : 

With  this  object  he  shall  maintain  the  laws  which  were  in  force  in  the 
country  in  time  of  peace.  He  may  only  suspend  their  enforcement  to  the 
extent  and  for  the  time  that  may  be  necessary  for  the  purpose  of  maintaining 
order. 

Colonel  Gross  von  Schwarzhoff  thinks  it  will  be  very  difficult  for  military 
men  to  accept  this  wording. 

Mr.  Rolin,  giving  due  regard  to  the  observations  made  by  his  Excellency 
Mr.  Beernaert  at  the  preceding  meeting,  is  of  opinion  that  the  right  of  the 
victor  should  not  be  recognized  by  convention  in  advance.  The  idea  which  pre- 
dominates in  these  articles  is  to  set  limits  which  the  victor  shall  not  exceed,  except 
in  case  of  the  necessities  of  war.  It  is  not  a  question  here  of  stipulating  what 
the  victor  is  authorized  to  do,  but  what  he  ought  to  be  prohibited  doing.  For 
this  reason  he  proposes  to  draft  the  article  as  follows : 

The  existing  laws  remain  in  force  in  the  occupied  territory,  and  if  the 
occupant  is  induced,  owing  to  the  necessities  of  war,  to  modify,  suspend,  or 
replace  them,  the  effect  of  these  measures  shall  be  limited  to  the  extent  and 
duration  of  the  occupation. 

Mr.  Lammasch,  although  agreeing  fundamentally  with  Mr.  Rolin,  regrets 
that  he  is  unable  to  fully  endorse  his  proposition.  He  is  afraid  that  this  wording 
might  be  construed  as  meaning  that  the  effect  of  the  acts  committed  by  virtue  of 
the  occupation  should  be  limited  to  the  period  of  the  occupation ;  it  seems  to  him, 
on  the  contrary,  that  these  acts  are  governed  by  the  laws  which  were  in 
[98]  force  during  this  time  and  that  thus,  by  modifying  the  adage  ''  locus  regit 
actum  "  so  as  to  read  "  tempus  regit  actum/'  the  same  laws  will  continue  to 
govern  these  acts  after  the  occupation  has  ceased. 

Mr.  Lammasch  states  that  the  wording  suggested  by  Mr.  Rolin  might  be 
construed  in  a  manner  contrary  to  this  principle. 


516  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

Mr.  Rolin  thinks  that  it  will  be  possible  for  him  to  do  justice  to  the  observa- 
tion of  Mr.  Lammasch  by  very  slightly  modifying  the  wording  which  he  pro- 
posed. 

The  President  remarks  that  Article  3  is  the  result  of  thorough  discussion. 
If  it  is  desired  to  find  a  wording  which  will  provide  for  all  cases,  one  might  de- 
liberate a  very  long  time.  Expressing  his  personal  opinion,  he  thinks  it  would 
be  desirable  to  adopt  this  article  in  its  original  text. 

At  the  request  of  Colonel  Gilinsky  note  is  taken  of  the  fact  that,  as  a  tech- 
nical delegate,  he  has  defended  the  military  laws  and  the  necessities  of  war  at  this 
meeting.  Owing  to  these  considerations  of  a  military  nature,  the  laws  of  the 
occupied  country  can  only  be  upheld  in  so  far  as  they  are  not  in  contradiction  with 
the  military  laws  of  the  invader. 

The  declaration  of  Colonel  Gilinsky  will  be  inserted  in  the  minutes. 

His  Excellency  Mr.  Beernaert  and  Mr.  Bourgeois  ask  that  the  vote  be  post- 
poned until  the  next  meeting. 

The  President  agrees  to  this  and  asks  the  delegates  who  have  proposals  to 
make  regarding  Chapters  I,  II  and  IX  as  a  whole,  to  send  them  in  writing  to-day 
to  the  Bureau  so  that  they  may  be  distributed  and  examined  before  the  next 
meeting. 

The  meeting  adjourns. 


EIGHTH   MEETING 

JUNE  10,  1899 


Mr.  Martens  presiding. 

The  minutes  of  the  seventh  meeting  are  read  and  adopted. 

General  Sir  John  Ardagh  reads  the  following  declaration: 

In  the  speech  delivered  by  his  Excellency  Mr.  Beernaert  at  the  sixth  meet- 
ing, I  believe  that  I  discern  a  conviction  or  at  least  a  desire  that  the  revision  of 
the  Brussels  Declaration  should  end  in  an  international  convention,  and  our 
President  in  his  statement  expressed  the  wish  that  this  declaration  might  be 
more  than  an  international  act. 

Without  seeking  to  ascertain  the  motives  to  which  may  be  attributed  the  non- 
adoption  of  the  Declaration  of  1874,  it  is  permissible  to  suppose  that  the  same 
difficulties  may  arise  at  the  conclusion  of  our  labors  at  The  Hague. 

In  order  to  brush  them  aside  and  to  avoid  the  unfruitful  results  of  the  last 
Conference,  it  seems  to  me  that  we  had  better  accept  the  Declaration  only  as  a 
general  basis  for  instructions  on  the  laws  and  customs  of  war  to  be  given  our 
troops,  without  any  pledge  to  accept  all  the  articles  as  voted  by  the  majority. 

I  believe  that  my  Government  is  willing  to  adopt  this  idea  instead  of  ab- 
solutely abstaining  according  to  the  communication  given  to  the  Imperial  Gov- 
ernment at  the  end  of  the  Brussels  Conference  by  Lord  Derby. 

Our  intention  is  to  embody  in  our  manual  of  instruction,  literally,  if  possible, 
all  the  articles  of  the  Declaration  which  we  deem  to  be  in  conformity  with  the 
principles  of  international  law  in  accordance  with  which  we  have  thus  far  regu- 
lated our  acts. 

W'th  this  reservation  we  desire  that  the  Conference  should  pass  upon  the 
largest  possible  number  of  questions  in  order  to  show  the  opinion  of  every  one 
one  way  or  the  other.  It  seems  to  us  that  the  entire  elimination  of  certain 
articles,  as  proposed  by  his  Excellency  Mr.  Beernaert,  might  be  con- 
[99]  sider^d  as  an  authorization  to  the  belligerents  to  interpret  the  laws  of  war 
in  a  way  unfavorable  to  weak  States,  whereas  a  full  discussion  would  at 
least  indicate  certain  restrictions  on  the  unlimited  right  arising  from  uncertainty; 
and,  whatever  the  result  may  be,  it  would  not  bind  us  to  accept  the  articles. 

This  full  liberty  to  accept  or  modify  the  articles  is  of  supreme  importance 
to  us. 

In  pursuing  this  line  of  ideas,  we  see  not  only  a  possibility  but  also  a  cer- 
tainty of  insuring  to  the  labors  of  the  two  Conferences  a  serious  result,  and  we 
believe  that  we  shall  be  avoiding  the  risk  of  failure  presented  by  a  project  for  an 
international  convention  or  by  the  adoption  of  identical  instructions  for  all  armies. 

At  all  events,  my  Government  will  not  be  bound  by  my  opinion  or  my  vote 
and  will  remain  absolutely  free. 

517 


518  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

The  President  then  took  the  floor  as  follows  : 

I  deem  it  my  duty  to  repeat  what  I  have  already  said  on  several  occasions, 
both  in  this  assembly  and  elsewhere.  The  object  of  the  Imperial  Government  has 
steadily  been  the  same,  namely,  that  the  Brussels  Declaration,  revised  as  far  as 
this  Conference  may  deem  necessary,  shall  form  a  solid  basis  for  the  instruc- 
tions which  the  Governments  will  give  to  their  land  armies  in  case  of  war.  Of 
course,  in  order  that  this  basis  may  be  firmly  established,  an  international  agree- 
ment is  necessary  similar  to  that  embodied  in  the  St.  Petersburg  Declaration  of 
1868.  It  would  be  suitable  if  the  signatory  and  acceding  Powers  would  declare 
in  an  article  that  they  are  agreed  on  certain  uniform  rules  which  would  con- 
stitute the  subject  of  these  instructions.  This  is  the  only  way  to  secure  an  obli- 
gation binding  on  the  signatory  Powers.  It  is  well  understood  that  the  Brussels 
Declaration  will  have  this  binding  force  only  as  far  as  the  contracting  or  acced- 
ing States  are  concerned. 

If,  however,  in  a  future  war  an  ally  of  one  of  these  Powers  should  not  have 
signed  this  pledge  to  wage  what  would  have  been  called  a  "  fair  "  war  in  the 
middle  ages,  the  rules  of  the  Brussels  Declaration  would  not  be  applicable  to 
that  ally.  He  would  obviously  be  entitled  to  give  such  instructions  as  he  might 
deem  useful  and  just  and  he  might  for  this  purpose  choose  from  among  the 
doctrines  professed  by  the  diflferent  jurisconsults  who  have  dealt  with  the  sub- 
ject. 

However,  those  instructions  would  lack  a  solid,  uniform,  and  recognized  basis. 

In  order  to  clearly  explain  what  the  purpose  of  the  Conference  is  in  regard 
to  this  subject  in  the  opinion  of  the  Russian  Government,  I  can 'find  no  better 
illustration  than  a  "  mutual  insurance  association  against  the  abuses  of  force  in 
time  of  war."  Now,  gentlemen,  one  is  free  to  join  an  association  or  not,  but  in 
order  that  it  may  exist  it  must  have  by-laws.  And  in  insurance  companies,  for 
instance  those  against  fire,  hail,  or  other  calamities,  the  by-laws  which  provide  for 
these  disasters  do  not  regulate,  but  recognize  the  existing  dangers.  Thus  it  is 
that  in  organizing  by  common  consent  "  the  mutual  insurance  association  against 
the  abuses  of  force  in  time  of  war  "  for  the  purpose  of  safeguarding  the  interests 
of  populations  against  great  disasters,  we  do  not  legalize  those  disasters  but  sim- 
ply recognize  them.  On  the  other  hand,  it  is  not  against  the  necessities  of 
war,  but  solely,  I  repeat,  gentlemen,  against  the  abuses  of  force  that  we  wish  to 
be  guaranteed. 

In  proposing  to  the  nations  of  the  civilized  world  to  found  such  a  society, 
Russia  not  only  expressed  a  desire  but  thought  that  she  was  obeying  a  duty.  It 
seems  to  me  that  the  whole  world  cannot  help  sharing  this  view.  It  is  for  the 
Governments  to  enter  the  society  or  not,  to  accept  or  reject  the  hand  extended 
to  them.  However,  only  the  members  will  benefit  by  all  the  advantages  which 
will  be  offered  by  this  society  in  time  of  war. 

As  regards  the  by-laws  of  the  society,  they  can  be  none  other  than  the 
Declaration  of  Brussels,  modified  by  your  deliberations.  But  do  not  lose  sight  of 
the  fact  that  none  of  its  articles  sanctions  the  disasters  of  war  which  do  and 
always  will  exist.  What  the  provisions  have  in  view  is  to  bear  relief  to  peace- 
able and  unarmed  populations  during  the  calamities  of  war. 

Here,  gentlemen,  is  the  standpoint  once  more  explained  which  in  my  opin- 
ion ought  to  dominate  our  common  efforts. 

I  hope  that  the  result  of  them  will  be  to  form  a  society  such  as  that  whose 
mission  and  purpose  I  have  set  forth  to  you. 


EIGHTH  MEETING,  JUNE  10,  1899  519 

At  the  proposition  of  Messrs.  Motono  and  Bille  it  is  decided  that  the  declara- 
tion of  Sir  John  Ardagh  and  the  explanation  of  Mr.  Martens  shall  be  printed 
and  appended  to  the  summary  account. 

Mr.  Veljkovitch  observes  that  in  his  opinion  the  subcommission  is  compe- 
[100]   tent  only  to  examine  the  draft  Declaration  of  Brussels.     It  will  be  for 
the  plenary  conference  to  decide  whether  the  results  of  these  labors  are  to 
be  given  the  form  of  a  convention. 

The  President  remarks  that  there  is  no  reason  for  entering  into  a  discus- 
sion of  the  declaration  of  Sir  John  Ardagh. 

At  the  end  of  the  deliberations  the  Governments  will  have  to  decide  as  to  the 
suitability  of  concluding  a  convention  on  this  subject. 

General  Sir  John  Ardagh  says  that  his  declaration  is  personal  in  character 
and  does  not  come  from  his  Government. 

His  Excellency  Count  Nigra  says  that  it  would  be  important  to  know  whether 
the  English  Government  shares  the  view  of  Sir  John  Ardagh. 

His  Excellency  Sir  Julian  Pauncefote  declares  that  it  is  a  question  here  of  a 
personal  opinion  in  regard  to  which  the  British  Government  will  be  consulted 
and  reach  a  decision  in  due  time  and  place. 

His  Excellency  Mr.  Beernaert  thinks  that  he  misunderstood  Sir  John 
Ardagh.  He  highly  appreciates  the  humanitarian  purpose  had  in  view  by  the 
Russian  Government  and  states  that  an  agreement  has  already  been  reached  on 
many  points  and  often  with  the  concurrence  of  the  English  delegate.  However, 
in  the  very  interests  of  the  cause,  he  deemed  it  his  duty  to  point  out  the  diffi- 
culties which  would  be  encountered  by  an  attempt  to  solve  certain  questions  by 
means  of  a  convention.  Nevertheless,  he  endorsed  the  proposition  of  Mr.  Odier 
to  insert  in  the  minutes  as  a  recommendation  that  which  could  not  be  embodied  in 
a  convention,  even  in  necessarily  vague  terms.  If  it  is  desired  only  to  impose  re- 
strictions upon  the  victor,  it  may  be  done  in  this  manner.  He  has,  moreover,  de- 
scribed the  situation  of  Belgium,  which  is  permanently  neutral  and  consequently 
very  much  disinterested  in  law  in  the  question  of  belligerents. 

The  President  says  that  note  will  be  taken  of  the  declarations  of  Sir  John 
Ardagh  and  his  Excellency  Mr.  Beernaert. 

He  announces: 

1.  That  Mr.  Odier  has  proposed  the  following  wording  for  Article  3: 

With  this  object  he  shall  maintain  the  laws  which  were  in  force  in  the 
country  in  time  of  peace.  He  may  only  suspend  their  enforcement  to  the 
extent  and  for  the  time  that  may  be  necessary  for  the  purpose  of  maintain- 
ing order. 

2,  That  Mr.  Rolin  has  proposed  the  following  amendment  to  Article  3  :  ^ 

The  existing  laws  remain  in  force  in  the  occupied  territory,  and  if  the 
occupant  is  induced,  owing  to  the  necessities  of  the  war,  to  modify,  suspend, 
or  replace  them,  these  measures  shall  be  only  of  a  purely  provisional  char- 
acter, limited  according  to  the  extent  and  duration  of  the  occupation. 

The  President  asks  the  delegates  who  have  proposed  amendments  in  regard 
to  Article  3,  the  maintenance  of  which  has  been  provisionally  adopted,  to  kindly 
give  explanations  regarding  their  propositions. 

1  See  annex  A. 


520  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

Mr.  Rolin  recalls  that  the  first  draft  of  his  amendment  has  been  distributed. 
It  was  couched  in  the  following  terms : 

The  existing  laws  remain  in  force  in  the  occupied  territory,  and  if  the 
occupant  is  induced,  owing  to  the  necessities  of  war,  to  modify,  suspend,  or 
replace  them,  the  eflfect  of  these  measures  shall  be  limited  to  the  extent  and 
duration  of  the  occupation. 

To  take  into  account  the  remarks  of  Mr.  Lammasch  at  the  close  of  the 
previous  meeting,  the  end  of  the  article  was  changed  in  the  text  now  submitted 
to  the  subcommission.  Apart  from  this  explanation,  Mr.  Rolin  has  nothing  to 
add  to  what  he  said  in  the  meeting  of  June  8  in  support  of  his  amendment  to 
Article  3. 

Mr.  Odier  recalls  the  fact  that  he  favored  the  abolition  of  Article  3  and 
that  he  had  proposed  his  wording  in  case  it  should  be  decided  to  maintain  this 
article.  He  would  like  to  have  the  text  of  the  article  in  question  submitted  to  a 
preliminary  vote,  whereupon  a  vote  could  be  taken  on  the  question  of  its  main- 
tenance. 

Baron  Bildt  proposed  the  following  amendment,  the  text  of  which  is  dis- 
tributed during  the  meeting :  Omit  from  Article  3  the  words  "  and  shall  not 
modify,  suspend,  or  replace  them  unless  necessary  " ;  and  from  Article  5,  the 
words  "  as  far  as  is  possible." 

Baron  Bildt  observes  that  opinions  were  divided  at  the  last  meeting.  On  the 
one  hand  guaranties  were  desired ;  on  the  other,  objections  were  made  to  defin- 
ing the  limits  of  the  rights  of  the  victor,  for  by  this  act  the  Governments  would 
be  recognizing  the  belligerents  in  advance  as  having  rights  over  their  subjects. 
It  was  from  this  standpoint  that  his  Excellency  Mr.  Beernaert  asked 
[101]  that  the  article  be  abolished.  The  speaker  expressed  an  opinion  to  the 
contrary,  but  in  order  to  attain  a  real  result,  he  proposed  his  amendment, 
which  consequently  is  in  the  nature  of  a  compromise.  He  hopes  to  receive  the 
consent  of  all,  unanimity  being  very  desirable  for  the  resolutions  of  this  sub- 
commission.     Personally,  he  would  not  be  opposed  to  maintaining  the  article. 

Colonel  Gross  von  Schwarzhoff  remarks  that  it  seems  inadmissible  to  him 
to  omit  the  last  words  of  the  article,  which,  without  this  restriction,  forbids  mak- 
ing any  change  whatever  in  the  state  of  affairs  in  the  invaded  territory.  The 
occupant  would  not  even  be  allowed  to  declare  martial  law  and  would  have  for 
instance  to  respect  the  laws  on  recruiting,  etc.  In  his  personal  opinion,  the  ac- 
ceptance either  of  the  amendment  of  Mr.  Odier  or  that  of  Baron  Bildt  gives  rise 
to  many  obstacles  to  the  ratification  of  this  act,  not  only  on  the  part  of  Germany 
but  elsewhere. 

Mr.  Bihourd,  in  order  to  bring  together  the  different  opinions  as  far  as 
possible  on  this  humane  provision,  proposes  to  omit  Article  3  but  to  preserve  its 
spirit  by  adding  the  following  phrase  to  Article  2 :  "  while  respecting  unless  ab- 
solutely prevented  the  laws  in  force  in  the  country." 

His  Excellency  Mr.  Beernaert  endorses  this  proposition. 

Baron  Bildt  and  Messrs.  Odier  and  Rolin  endorse  the  amendment  of  Mr. 
Bihourd. 

On  motion  of  Jonkheer  van  Karnebeek  a  vote  is  first  taken  on  this  amend- 
ment, the  decision  on  this  subject  implying  likewise  that  regarding  the  main- 
tenance or  abolition  of  Article  3. 

The  amendment  of  Mr.  Bihourd  is  adopted  by  23  votes  against  1  (Japan). 


EIGHTH  MEETING,  JUNE  10,  1899  521 

Mr.  Motono  explains  that  he  voted  against  the  amendment  for  the  following 
reason :  The  phrase  added  to  Article  2  has  in  view  only  laws  relating  to  public 
order  and  safety,  whereas  Article  3  seems  to  him  to  be  more  general  in  scope. 

Mr.  Beldiman,  having  made  an  appeal  to  the  Japanese  delegate  in  order  to 
secure  the  desired  unanimity,  Mr.  Motono  modified  his  negative  vote  after  some 
explanations  had  been  made  by  Messrs.  Beldiman  and  Bourgeois  regarding  the 
purport  of  the  phrase  added  to  Article  2  by  Mr.  Bihourd. 

The  amendment  of  Mr.  Bihourd  is  therefore  unanimously  adopted  by 
twenty-four  votes,  the  delegate  from  Greece  not  being  present. 

The  President  thanks  Mr.  Motono  for  the  spirit  of  conciliation  which  he 
was  pleased  to  show. 

The  discussion  of  Article  4  of  the  Brussels  draft  is  now  taken  up: 

The  functionaries  and  employees  of  every  class  who  consent,  on  his  invitation,  to  con- 
tinue their  functions,  shall  enjoy  his  protection.  They  shall  not  be  dismissed  or  subjected 
to  disciplinary  punishment  unless  they  fail  in  fulfilling  the  obligations  undertaken  by  them, 
and  they  shall  not  be  prosecuted  unless  they  betray  their  trust. 

Captain  Crozier  declares  that,  although  he  tentatively  voted  to  abolish  Article 
4,  inasmuch  as  this  provision  is  of  no  use  to  his  country  because  it  runs  no  risk 
of  being  invaded,  he  will  nevertheless  now  express  himself  in  favor  of  maintain- 
ing Article  4,  since  the  spirit  thereof  has  been  preserved  by  the  vote  just  taken. 

His  Excllency  Mr.  Beemaert  points  out  that  it  is  impossible  for  a  State 
to  authorize  its  officials  in  advance  to  pass  into  the  service  of  its  adversary. 

Jonkheer  van  Karnebeek  says  that  in  his  opinion  the  substance  of  the  pro- 
vision is  not  that  a  right  is  given  to  the  invader ;  restrictions  are  rather  placed  on 
his  actual  authority.  However,  he  sees  something  else  in  the  article :  not  an  "  au- 
thorization "  but  a  sort  of  "  invitation,"  which  he  would  never  like  to  see  in- 
serted in  a  convention.  In  many  cases  it  would  be  a  patriotic  duty  of  the  highest 
importance  to  remain  to  the  end  the  most  determined  and  resolute  opponents  and 
enemies  of  the  invader. 

For  this  reason  he  sees  a  diflference  between  Article  4  and  the  other  articles 
which  it  is  proposed  to  abolish.  As  far  as  he  is  concerned,  he  asks  that  Article 
4  be  dropped. 

Mr.  Lammasch  asks  whether  it  would  not  be  possible  to  maintain  it  with  a 
slight  modification  of  the  text  by  adopting  the  conditional  form  which  Mr.  Rolin 
used  in  drafting  Articles  5  and  5  a  proposed  by  him. 

His  Excellency  Mr.  Beemaert  remarks  that,  even  with  the  wording  proposed 
by  Mr.  Lammasch,  the  authorization  would  still  exist. 

Mr.  Lammasch  thinks  then  that  the  words  "  with  the  consent  of  their  coun- 
try "  should  be  added. 

His  Excellency  Mr.  Beernaert  says  that  in  this  way  the  article  would  lose 
its  reason  for  existence. 

Colonel  Gross  von  Schwarzhoff  says  that  it  is  not  a  question  here  of  political 
functionaries  alone,  but  also  of  those  of  all  other  categories,  including  those 
elected  by  the  inhabitants.  The  inhabitants  have  a  right  to  have  the  mayors  and 
municipal  employees  remain  in  their  places. 

Moreover,  it  is  in  the  interest  of  the  occupant  himself  to  retain  some  of 
[102]  these  functionaries.     It  is  not  solely  a  question  of  permission  to  remain  in 
the  service  of  the  enemy,  but  the  presence  of  certain  functionaries  is  in 
the  interest  of  both  parties. 


522  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

Mr.  Rolin  having  been  unable  to  find  any  form  of  wording,  taking  all  the 
objections  into  account,  supports  the  proposal  to  abolish  the  article.  The  wording 
suggested  by  Mr.  Lammasch  also  presents  a  danger,  since  it  appears  to  stipulate 
that  the  functionaries  may  not  remain  at  their  posts  without  the  consent  of  their 
Government. 

It  is  necessary  to  take  into  account  the  interests  of  the  populations,  which 
require  that  the  local  and  municipal  functionaries  shall  be  present  in  order  tO' 
defend  the  rights  and  property  of  the  populations  as  far  as  possible  against  the 
demands  of  the  invader. 

In  acting  thus  the  functionaries  not  only  do  not  fail  in  their  duties,  but  from 
a  certain  standpoint  it  may  even  be  said  that  they  fulfill  an  obligation  towards  their 
own  country.  It  would  therefore  be  dangerous  to  adopt  a  form  of  wording  which 
might  be  construed  to  mean  that  the  functionaries  could  not  remain  at  their  posts 
without  having  received  permission  from  their  own  country. 

The  President  observes  that  all  these  questions  were  discussed  at  length  in 
1874.  Not  only  were  the  necessities  of  war  kept  in  view,  but  experience  was 
also  taken  as  a  basis,  in  the  desire  to  safeguard  the  interests  of  the  populations  as 
much  as  possible. 

If  the  enemy  does  not  find  any  functionary  at  hand,  he  has  no  means  of  be- 
ing equitable  and  just,  and  it  is  by  virtue  of  the  mandate  of  their  own  country 
that  the  functionaries  are  the  natural  defenders  and  protectors  of  the  inhabitants 
in  their  relations  with  the  occupant. 

Recognizing  the  difficulties  raised  by  this  article,  Mr.  Martens  consents  to 
the  proposal  to  abolish  it. 

Jonkheer  van  Karnebeek  understands  perfectly  well  how  important  it  is  to 
find  mayors  and  other  local  authorities  ready  to  place  themselves  at  the  disposal 
of  the  occupying  enemy  and  to  protect  the  population  at  the  same  time.  However, 
there  are  other  authorities  whose  functions  are  very  important,  notably  in  the 
Netherlands.  These  are  the  authorities  in  charge  of  the  administration  of  dikes, 
of  rivers,  and  of  the  movement  of  waters.  In  case  of  occupation  their  co- 
operation might  be  indispensable  to  the  defense  of  the  country.  To  the  enemy 
the  assistance  of  these  authorities,  who  alone  know  the  movement  of  the  waters, 
would  be  of  the  highest  importance,  but  if  they  were  to  enter  his  service  this  might 
constitute  an  act  of  treason  at  a  time  when  it  is  a  question  of  the  defense  of  the 
country.  For  this  special  reason,  he  can  never  give  his  consent  to  the  maintenance 
of  Article  4. 

Mr.  Veljkovitch  remarks  that  the  question  is  already  decided  by  Article  2. 
Respect  for  the  laws  which  exist  in  the  country  implies  the  retention  of  the 
functionaries  appointed  by  virtue  of  those  laws. 

The  President  says  that  the  judicious  interpretation  of  Mr.  Veljkovitch 
shall  be  inserted  in  the  minutes. 

Article  4  is  unanimously  omitted. 
Article  5  is  read  : 

The  army  of  occupation  shall  only  collect  the  taxes,  dues,  duties  and  tolls  imposed  for 
the  benefit  of  the  State,  or  their  equivalent,  if  it  is  impossible  to  collect  them,  and,  as  far 
as  is  possible,  in  accordance  with  the  existing  forms  and  practice.  It  shall  devote  them  to 
defraying  the  expenses  of  the  administration  of  the  country  to  the  same  extent  as  the  legiti- 
mate Government  was  so  obligated. 

The  President  says  that  Mr.  Rolin  proposed  the  following  new  wordings: 


EIGHTH  MEETING,  JUNE  10,  1899  523 

If  the  occupant  collects  the  taxes  for  his  own  benefit,  he  thereby  incurs 
the  obligation  to  defray  the  expenses  of  the  administration  of  the  occupied 
territory  to  the  same  extent  as  the  legitimate  Government  was  so  bound. 

His  Excellency  Mr.  Beernaert  asks  that  this  article  be  examined  at  the  same 
time  as  Articles  40  to  42,  because  in  his  opinion  there  is  a  connection  between 
them. 

Mr.  Rolin  thinks  that  Article  5,  dealing  with  existing  taxes,  sets  forth  a 
different  principle  from  that  of  the  articles  relating  to  extraordinary  contributions, 
requisitions,  and  other  charges  collected  by  the  occupant. 

Jonkheer  van  Karnebeek  observes  that  the  wording  proposed  by  Mr.  Rolin 
is  not  preferable  to  the  original  text,  since  it  does  not  specify  what  taxes  are 
referred  to  and  is  less  favorable  to  the  invaded  country.  Therefore,  it  seems  pref- 
erable to  him  from  a  general  standpoint  that  the  text  adopted  at  Brussels  should 
be  maintained. 

Mr.  Rolin  points  out  that  by  his  wording  he  tried  to  remove  the  scruples  of 
which  his  Excellency  Mr.  Beernaert  made  mention.  He  does  not  disapprove 
the  Brussels  text  in  itself. 

His  Excellency   Mr.   Beernaert   says   that  the   words   "  already  imposed " 
should  at  least  be  introduced  into  the  proposition  of  Mr.  Rolin. 
[103]   Mr.  Bihourd  says  that  it  is  also  proper  to  respect  existing  forms  and  usages 
as  regards  the  collection  of  the  taxes.     The  wording  of  Mr.  Rolin  seems 
to  him  too  vague. 

Mr.  Rolin  answers  that,  since  there  is  here  merely  a  substitution  of  the  au- 
thority of  the  occupant  for  the  legal  authority,  it  would  have  been  sufficient,  in 
his  opinion,  to  say  "  collects  the  taxes,"  which  comprises  only  the  existing  taxes 
in  their  various  modes  of  collection. 

Jonkheer  van  Karnebeek  says  that  in  the  original  text  of  1874  he  does  not 
see  the  recognition  of  a  right  but  only  a  restriction  on  the  actual  power  of  the 
invader.  The  Brussels  text  which  he  interprets  in  this  way  is  more  restricted  and 
therefore  in  his  opinion  preferable. 

Mr.  Veljkovitch  observes  that  the  enumeration  is  not  complete.  Municipal 
contributions  are  not  comprised  therein.  He  proposes  to  add  "  or  any  other  con- 
tributions already  imposed,"  and  to  omit  "  for  the  benefit  of  the  State." 

The  President  recalls  Article  8,  which  declares  that  the  property  of  muni- 
cipalities shall  be  treated  as  private  property. 

Jonkheer  van  Karnebeek  remarks  that  as  the  fundamental  purport  of  this 
article  is  that  the  authority  of  the  occupant  is  substituted  for  that  of  the  invaded 
State,  it  cannot  be  admitted  that  the  occupant,  by  assuming  a  right  which  the 
occupied  State  does  not  possess,  may  take  possession  of  the  municipal  taxes, 
which  the  invaded  State  itself  would  not  think  of  appropriating  in  normal  cir- 
cumstances. 

Mr.  Veljkovitch  remarks  that  in  this  eventuality  the  municipal  authorities, 
being  no  longer  able  to  discharge  their  duties,  can  likewise  not  collect  the  muni- 
cipal taxes  and  especially  the  county  rate ;  it  is  therefore  proper  for  the  occupant, 
whose  power  is  substituted  for  that  of  the  authorities,  to  take  possession  of  the 
said  taxes. 

Mr.  Rolin  proposes  the  following  wording,  in  which  he  has  introduced  some 
modifications,  after  an  exchange  of  views  participated  in  by  his  Excellency  Mr. 
Beernaert  and  Messrs.  Bihourd  and  Beldiman: 


524  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

If  the  occupant  collects  the  taxes  imposed  for  the  benefit  of  the  State, 
he  shall  do  so  as  far  as  is  possible  in  accordance  with  the  rules  of  assessment 
and  incidence  in  force  in  the  territory  occupied,  and  shall  in  consequence  be 
bound  to  defray  the  expenses  of  the  administration  of  the  occupied  territory 
to  the  same  extent  as  the  legitimate  Government  was  so  bound. 

The  President  observes  that  it  would  be  desirable  to  vote  first  on  the  com- 
plete abolition  of  the  article,  then  on  the  Brussels  text,  and  then  on  Mr.  Rolin's 
text  as  amended  following  the  remarks  of  Messrs.  Bihourd  and  Beernaert. 
It  seems  to  him  that  the  original  text  of  Article  5  safeguards  the  interests  of  the 
populations  better. 

Mr.  Beldiman  is  of  the  opinion  that  the  proposition  of  Mr.  Rolin  should 
first  be  voted  on  as  being  in  the  nature  of  a  compromise  between  those  who  ask 
for  the  maintenance  of  Article  5  and  those  who  ask  for  its  abolition. 

Jonkheer  van  Karnebeek  thinks  it  would  not  be  logical  to  vote  for  the  aboli- 
tion of  the  article  first.  It  ought  to  be  decided  first  what  is  to  be  substituted  in 
its  stead.  If  a  majority  cannot  be  secured  in  favor  of  any  new  text,  it  will  be 
proper  to  vote  for  the  abolition  of  the  article. 

It  must,  however,  be  remarked  that  there  is  but  a  slight  diflference  between  the 
wording  of  Mr.  Rolin  and  that  of  1874.  It  is  very  certain  that  this  assembly 
wishes  to  meet  the  objections  formed  by  his  Excellency  Mr.  Beernaert,  but  per- 
haps the  latter,  in  order  to  prevent  a  confusion  in  the  discussion  and  the  vote, 
would  be  willing  on  his  part  to  make  a  concession  by  supporting  the  original 
wording  of  1874.  Of  course  this  would  be  done  with  the  understanding  that 
the  article  should  be  construed  as  meaning  that  the  invader  should  not  be  recog- 
nized therein  as  having  any  rights. 

His  Excellency  Mr.  Beernaert  has  already  expressed  his  desire  to  have  a 
perfect  agreement  reached.  However,  he  could  not  vote  ad  referendum  in  the 
sense  desired  by  Mr.  van  Karnebeek. 

The  President  puts  to  vote  the  complete  abolition  of  Article  5  with  the 
understanding  that  no  other  provision  is  to  be  substituted  therefor. 

The  following  voted  against  this  abolition :  Germany,  United  States,  Aus- 
tria-Hungary, China,  Denmark,  France,  Great  Britain,  Italy,  Japan,  Luxemburg, 
Mexico,  Netherlands,  Portugal,  Roumania,  Russia,  Serbia,  Sweden  and  Norway, 
and  Turkey. 

The  following  voted  for  the  abolition :  Belgium,  under  reservation  of  what 
may  be  substituted  for  the  article  submitted  to  vote,  Spain,  Persia,  Siam  (with 
the   same   reservation  as   made  by  the   delegate    from   Belgium),    Switzerland, 

and  Bulgaria. 
[104]  Jonkheer  van  Karnebeek  asks  his  Excellency  Mr.  Beernaert  whether  he 
could  not,  with  a  view  to  securing  unanimity,  agree  to  the  text  of  Mr. 
Rolin. 

Unanimity  would  be  well  worth  a  concession.  On  his  part,  although  pre- 
ferring that  the  text  of  1874  should  be  maintained,  he  would  consent  to  adopt  Mr. 
Rolin's  wording. 

Baron  Bildt  declares  that  he  shares  the  view  of  Mr.  van  Karnebeek. 

His  Excellency  Mr.  Beernaert  says  that  he  cannot  vote  for  this  wording 
ad  referendum,  but  that  he  will  recommend  its  adoption  to  his  Government, 

Mr.  Rolin's  wording  is  unanimously  adopted. 

The  meeting  adjourns. 


NINTH   MEETING 

JUNE  12,  1899 


Mr.  Martens  presiding. 

The  minutes  of  the  eighth  meeting  are  read  and  adopted. 
The  President,  with  a  view  to  facilitating  the  work  of  the  subcommission, 
proposes : 

1.  To  have  printed  without  comments  the  text  of  all  the  articles  adopted 
thus  far. 

2.  To  appoint  a  drafting  committee  composed  of  Colonel  Gross  von 
ScHWARZHOFF,  Mcssrs.  Lammasch  and  Renault,  Colonel  Gilinsky,  Colonel 
A  Court,  General  Zuccari,  and  Mr.  Beldiman,  with  Mr.  Rolin  as  reporter. 
The  President  will  be  present  at  the  labors  of  the  committee,  whose  mission  will 
be  the  correction  and  final  drafting  of  the  adopted  text.  The  members  of  the 
subcommission  will,  after  receiving  this  text,  kindly  communicate  to  the  drafting 
committee  their  observations  or  questions.  This  procedure  will  enable  them  to 
arrive  at  the  final  text,  as  appearing  from  the  minutes  and  as  it  may  serve  for 
the  second  reading. 

General  Zuccari  asks  that  the  old  and  new  texts  be  printed  opposite  one 
another. 

The  two  propositions  of  the  President  are  adopted. 

The  order  of  the  day  embodies  a  discussion  of  Articles  6  to  8. 

Before  opening  the  deliberations, .  the  President  suggests  a  modification 
in  the  order  of  the  Articles.  Article  5,  setting  forth  fundamentally  the  rights  and 
duties  of  the  occupying  State,  was  adopted  with  a  happy  unanimity.  Articles 
6  and  following  deal  with  the  rights  and  duties  of  the  occupant  with  respect  to 
private  property,  railroads  and  the  civilian  population.  Now,  Articles  36  to  39, 
which  have  already  been  adopted,  relate  to  similar  subjects.  There  would  there- 
fore be  an  advantage  in  placing  Articles  36  to  39  in  Chapter  I  after  Article  5. 
The  subcommission  formulated  not  only  the  rights,  but  also  the  duties  of  the 
occupant  in  regard  to  private  property,  peaceful  persons,  and  famiHes.  This  is 
the  place  to  determine  the  restrictions  to  be  placed  on  the  principle  of  respect 
for  private  property  by  means  of  contributions  and  requisitions. 

Accordingly  there  is  no  reason  for  discussing  again  Articles  36  to  39,  which 
have  already  been  adopted.  Articles  40  to  42  might  be  taken  up,  to  be  then 
followed  by  Articles  6  and  7,  which  treat  of  the  material  interests  of  the  occupied 
State.  It  will  be  seen  what  distinction  is  to  be  established  between  private 
property  which  is  inviolable  on  land  and  the  property  of  the  State.  Articles  9 
to  11,  which  will  remain  to  be  examined,  concern  the  combatants,  their  rights  and 
their  duties. 

525 


526  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

Mr.  Bihourd  is  of  opinion  that  the  proposal  of  the  President  is  worthy  of 
approval.  But  he  thinks  that  the  drafting  committee  ought  to  be  assigned  the 
task  of  finding  the  final  logical  order  of  the  articles. 

The  subcommission  shares  this  view. 

Articles  40,  41  and  42  are  now  read : 

Article  40 

As  private  property  should  be  respected,  the  enemy  will  demand  from  communes  or 

inhabitants  only  such  payments   and  services  as  are  connected  with  the  generally 

11051    recognized  necessities  of  war,  in  proportion  to  the  resources  of  the  country,  and  not 

implying,  with  regard  to  the  inhabitants,  the  obligation  of  taking  part  in  operations 

of  war  against  their  country. 

Article  41 

The  enemy  in  levying  contributions,  whether  as  an  equivalent  for  taxes  (see  Article  5) 
or  for  payments  that  should  be  made  in  kind,  or  as  fines,  shall  proceed,  so  far  as  possible, 
only  in  accordance  with  the  rules  for  incidence  and  assessment  in  force  in  the  territory- 
occupied. 

The  civil  authorities  of  the  legitimate  Government  shall  lend  it  their  assistance  if  they 
have  remained  at  their  posts. 

Contributions  shall  be  imposed  only  on  the  order  and  on  the  responsibility  of  the  com- 
mander in  chief  or  the  superior  civil  authority  established  by  the  enemy  in  the  occupied 
territory. 

For  every  contribution  a  receipt  shall  be  given  to  the  person  furnishing  it. 

Article  42 

Requisitions  shall  be  made  only  with  the  authorization  of  the  commander  in  the  terri- 
tory occupied. 

For  every  requisition  indemnity  shall  be  granted  or  a  receipt  delivered. 

The  President  states  that  the  following  amendments  are  up  for  considera- 
tion: 

1.  His  Excellency  Mr.  Beernaert  desires  to  see  these  articles  omitted  and 
proposes  two  new  articles  thus  worded : 

A.  The  occupying  army  shall  be  allowed  to  collect  taxes  in  the  occupied 
territory  only  in  accordance  with  the  decision  and  under  the  responsibility 
either  of  the  commander  in  chief  or  of  the  superior  civil  authorities  instituted 
by  him. 

These  taxes  shall,  as  far  as  possible,  be  established  in  accordance  with 
the  rules  of  assessment  and  distribution  in  force  in  the  occupied  territories. 

B.  The  occupying  army  shall  be  allowed  to  make  requisitions  in  kind 
only  on  the  written  order  of  the  officer  commanding  the  occupied  locality. 

For  every  requisition  a  compensation  shall  be  allowed  or  a  receipt 
delivered. 

2.  Mr.  RoLiN,  reporter,  has  proposed  an  Article  5a  to  take  the  place  of 
Article  41 :  ^ 

If  the  occupant  levies  extraordinary  contributions,  either  by  way  of  fines, 
or  as  an  equivalent  for  unpaid  taxes  or  payments  not  furnished  in  kind, 
he  shall  proceed  so  far  as  possible  only  in  accordance  with  the  local  rules 
governing  incidence  and  assessment. 

1  See  annex  A. 


NINTH  MEETING,  JUNE  12,  1899  527 

Contributions  shall  be  imposed  only  on  the  order  and  on  the  responsibility 
of  the  commander  in  chief  or  the  superior  civil  authority  established  at  the 
place. 

For  every  contribution  a  receipt  shall  be  given  to  the  person  furnishing  it. 

and  an  Article  5b  proposed  as  a  substitute  for  Articles  40  and  42 : 

Payments  in  kind  and  in  general  all  requisitions  levied  against  com- 
munes and  inhabitants  shall  be  commensurate  with  the  generally  recognized 
necessities  of  war,  in  proportion  to  the  resources  of  the  country,  and  of  such  a 
nature  as  not  to  imply  the  obligation  on  the  part  of  the  population  to  take  part 
in  operations  of  war  against  their  country. 

Requisitions  shall  be  made  only  with  the  authorization  of  the  com- 
mander in  chief  in  the  territory  occupied. 

Contributions  in  kind  shall,  as  far  as  possible,  be  paid  for  in  cash,  and  if 
not  vouchers  shall  be  given. 

3.  Finally,  Lieutenant  Colonel  von  Khuepach  proposed  the  following  as 
paragraph  3  of  Article  41 :  "  Contributions  shall  not  be  levied  except  on  the 
order  and  under  the  responsibility  of  the  commander  in  chief  of  the  troops 
occupying  the  territory  or  of  the  superior  civilian  authorities  established  by  the 
enemy  in  this  territory." 

After  paragraph  1  of  Article  42,  as  a  new  paragraph :  "  In  case  of  urgency 
and  for  the  needs  of  daily  existence  of  the  troops,  requisitions  may  be  made 
with  the  authorization  of  their  commanders." 

Jonkheer  van  Karnebeek  observed  that  in  rereading  the  contents  of  these 
Articles  40,  41,  and  42,  he  does  not  find  the  ideas  to  be  expressed  very  clearly. 
It  does  not  appear  therefrom  what  system  the  Conference  of  1874  wished  to 
establish,  and  one  cannot  help  recognizing  a  certain  confusion  of  ideas  in  these 
texts.  On  the  other  hand,  the  resolution  taken  by  this  subcommission  to  give 
another  wording  to  Article  5  has  not  improved  the  situation. 

Mr.  VAN  Karnebeek  would  like  to  set  forth  the  system  to  be  adopted,  and 
if  it  meets  with  approval,  he  will  point  out  a  new  wording.  The  system  which 
he  recommends  is  as  follows:  In  the  matter  of  taxes,  the  belligerent 
[106]  on  the  occupied  territory  shall  collect  only  the  taxes  already  existing  and 
established  by  the  invaded  State.  A  clear  statement  must  be  made  with 
regard  to  respect  for  private  property,  and  the  feeding  of  war  by  war  should  be 
prohibited,  as  well  as  the  making  the  inhabitants  pay  the  expenses  of  the  war. 
Contributions  of  money  should  only  be  permitted  as  an  equivalent  for  unpaid 
existing  taxes,  or  else  by  way  of  fine.  It  must  be  recognized  that  an  occupying 
army  may  find  it  necessary  to  impose  fines. 

As  to  requisitions  in  kind,  the  occupant  ought  to  be  enabled  to  make  them. 
They  are  neither  in  the  character  of  taxes  nor  fines,  but  arise  from  the  necessity 
of  affording  the  troops  subsistence.  But  Mr.  van  Karnebeek  deems  it  illogical 
to  admit,  as  was  done  at  Brussels,  that  they  may  be  superseded  by  contributions 
in  money. 

For  the  furnishing  of  supplies  in  kind,  either  compensation  must  be  allowed 
or  receipts  delivered. 

This  is  the  system  to  be  adopted.  It  is  easily  arrived  at  if  we  utilize 
the  existing  texts,  only  in  this  case  it  will  be  proper  to  reverse  the  decision  reached 
and  preserve  the  former  wording  of  Article  5. 

The  President  observes  that  Article  40  becomes  almost  useless  if  preceded 


528  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

by  Articles  Z7  to  39,  and  that  it  might,  if  necessary,  be  omitted.  As  regards 
Articles  41  and  42,  concerning  requisitions  and  contributions,  he  believes  that 
the  new  wording  proposed  by  Mr.  Rolin  in  Articles  5a  and  5&  is  superior  to 
the  Brussels  text.  The  work  of  the  subcommission  would  be  facilitated  if 
Articles  41  and  42  were  taken  out  of  the  discussion  and  the  propositions  of  Mr. 
RoLiN  taken  as  a  basis  for  the  deliberation,  they  appearing  to  him  to  be  plainer 
and  less  likely  to  give  rise  to  misunderstandings. 

Jonkheer  van  Karnebeek  cannot  entirely  embrace  this  view.  He  agrees 
to  omitting  Article  40.  As  to  the  wording  proposed  by  Mr.  Rolin  for  Articles 
41  and  42,  it  springs  from  a  system  different  from  his.  Mr.  Rolin  wished  to 
conciliate  everybody  and  meet  objections  by  changes  of  form.  His  objections 
relate  to  the  substance  and  he  suggests  the  following  wording: 

Article  41 

The  enemy  shall  levy  contributions  in  money  only  as  an  equivalent  for 
taxes  as  referred  to  in  Article  5  or  by  way  of  fine,  and  as  far  as  possible 
shall  do  this  only  in  accordance  with  the  local  rules  concerning  the  distribu- 
tion and  assessment  of  taxes. 

The  contributions  shall  be  levied  only  on  the  order  and  under  the  re- 
sponsibility of  the  commander  in  chief  or  of  the  superior  civil  authority  es- 
tablished by  the  enemy  in  the  occupied  territory. 

As  to  Article  42,  relating  to  furnishing  of  supplies,  Mr.  Rolin's  text  might 
be  followed.  The  main  question  is  whether  the  enemy  is  to  be  forbidden  to  levy 
contributions  in  money  otherwise  than  as  an  equivalent  for  established  taxes  or 
by  way  of  fine.  The  Brussels  Declaration  leaves  the  door  open  to  other  con- 
tributions intended  solely  for  the  purpose  of  raising  money.  Mr.  van  Karnebeek 
points  out  the  necessity  of  reaching  a  solution  on  this  capital  point ;  otherwise 
big  difficulties  will  arise  in  practice. 

Colonel  Gross  von  Schwarzhoff  observes  that  Mr.  van  Karnebeek  has 
laid  down  an  entirely  new  principle.  It  would  be  well  to  determine  its  scope 
before  entering  into  details. 

Jonkheer  van  Karnebeek  explains  that  he  wishes  to  allow  the  occupant 
the  privilege  of  levying  requisitions  in  kind,  because  the  subsistence  of  troops  is 
a  necessity  of  war,  but  he  asks  that  contributions  in  money  be  prohibited  because 
in  his  opinion  they  do  not  serve  for  the  maintenance  of  the  soldiers. 

Colonel  Gross  von  Schwarzhoff  answers  that  this  opinion  does  not  cor- 
respond with  the  reality.  The  reason  alleged  by  Mr.  van  Karnebeek  ought  not 
therefore  to  prevent  him  from  voting  for  contributions.  As  a  matter  of  fact, 
there  are  two  ways  of  making  requisitions,  either  as  a  collective  measure,  in 
which  the  communes  are  asked  to  furnish  a  certain  amount  of  provisions,  or  as  an 
individual  measure,  in  which  the  inhabitants  are  directly  asked  for  the  cattle, 
provisions,  etc.,  which  they  possess.  These  measures,  especially  the  second,  are 
both  very  disagreeable  to  the  population,  are  often  unjust, —  because  the  poor 
peasant  is  asked  for  the  only  cow  he  possesses,  while  the  well-to-do  inhabitant 
is  asked  only  for  the  few  supplies  that  happen  to  be  found  in  his  house, —  and, 
finally,  they  are  not  very  effective. 

As  a  consequence,  a  third  mode  of  procedure  has  been  adopted;  it  consists 
in  the  establishment  of  open  markets  where  the  supplies  brought  in  by  the 
inhabitants  are  bought   for  cash  and  at  prices   exceeding  the   average.     This 


NINTH  MEETING,  JUNE  12,  1899  529 

measure  is  more  humane,  because  the  poor  receive  immediately  the  price  of  their 
goods,  while  at  the  same  time  being  more  effective,  because  the  inhabitants  ac- 
cede to  it  willingly,  and  even  provisions  which  have  been  carefully  hidden  are 
brought  in.  However,  in  order  to  be  able  to  pay  in  cash,  much  money  is  needed, 
and  it  is  the  very  purpose  of  contributions  to  supply  this  need  of  money. 
[107]  His  Excellency  Mr.  Beernaert  prefers  the  proposition  of  Mr.  Rolin  to 
that  of  Mr.  van  Karnebeek.  It  has  been  decided  to  authorize  the  in- 
vader to  put  himself  in  the  place  of  the  authority  of  the  invaded  State  and 
to  collect  the  taxes.  Must  the  principles  be  admitted  which  Colonel  Gross  von 
ScHWARZHOFF  has  just  announced?     This  would  be  a  poor  sort  of  progress. 

His  Excellency  Mr.  Beernaert  does  not  think  that  the  right  of  the  enemy 
to  levy  war  contributions  should  be  recognized  in  theory.  Requisitions  in  kind 
are  understood,  being  something  which  must  be  submitted  to  in  consideration 
of  indemnity ;  but  are  we,  by  means  of  an  international  act,  going  to  recognize  the 
invading  army  as  having  a  right  to  levy  contributions  in  money  and  to  an  un- 
limited degree?  This  would  be  sanctioning  in  law  that  which  has  hitherto  been 
restricted  to  the  domain  of  fact. 

Mr.  Rolin  has  entered  upon  a  line  of  thought  akin  to  his  own.  Of  the 
various  propositions,  that  of  Mr.  van  Karnebeek  is  the  least  acceptable  to  Mr. 
Beernaert. 

Jonkheer  van  Karnebeek  insists  upon  the  difference  existing  between  his 
standpoint  and  that  of  the  other  delegates  who  have  made  propositions  or  ex- 
pressed opinions.  That  of  Mr.  Beernaert  would  leave  the  door  open  to  extor- 
tions. At  least  an  attempt  was  made  in  1874  to  impose  restrictions,  the  special 
character  of  supplies  in  kind  having  been  recognized  as  giving  a  right  to  in- 
demnity or  at  least  to  a  receipt.  Mr.  van  Karnebeek  points  out  that  his  word- 
ing leaves  no  doubt. 

Mr.  Lammasch  takes  up  the  defense  of  contributions,  which  have  been  so- 
keenly  attacked  by  Mr.  van  Karnebeek.  These  contributions  appear  to  him  to  be 
a  rather  humane  means  of  waging  war,  a  very  efficacious  means  of  exhausting  the 
resources  of  the  adversary  and  of  thereby  putting  an  end  to  the  war.  It  is  im- 
possible to  resuscitate  the  dead  or  to  restore  amputated  limbs,  but  those  who 
have  made  contributions  may  be  indemnified.  In  a  word,  the  present  system  ought 
to  be  maintained. 

Mr.  Odier  declares  that,  according  to  his  instructions,  it  is  impossible  for 
him  to  subscribe  to  the  principle  that  war  ought  to  feed  war.  He  could  not 
declare  his  agreement  with  propositions  regulating  the  right  of  the  occupant 
with  regard  to  private  individuals  unless  the  following  principles  were  admitted : 

The  occupant  may  demand  only  regulation  military  supplies  in  kind  and 
in  money  to  which  the  armies  of  the  legal  Government  would  be  entitled.  As 
to  extraordinary  supplies,  he  is  obliged  to  indemnify  the  persons  who  give  up 
their  property,  or  to  deliver  them  a  receipt.  Contributions  are  allowable  only 
by  way  of  fine  for  acts  of  hostility  for  which  all  the  inhabitants  might  be 
deemed  responsible,  or  by  way  of  a  forced  loan  in  case  of  absolute  necessity  ; 
the  forced  loan  must  be  repaid. 

Colonel  Gross  von  Schwarzhoff  waives  the  right  to  answer  Mr.  vak 
Karnebeek  in  detail,  for  he  thinks  that  the  first  thing  to  do  is  to  come  to  an 
understanding  on  the  principle  involved  in  the  question  raised.  He  understands 
very  well  that  there  are  interests,  humanitarian  or  economic,  urging  the  reduction 


530  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

of  the  consequences  of  invasion  as  much  as  possible ;  but  besides  these,  there  are 
the  belHgerents  who  also  are  entitled  to  certain  consideration  and  whose  action 
should  not  be  too  much  trammeled. 

He  would  understand  the  propositions  made  if  it  were  a  question  of  reach- 
ing decisions  in  this  body  which  would  be  final  when  adopted  by  a  majority 
vote,  but  the  task  of  this  subcommission  is  only  to  prepare  a  draft  convention. 
Behind  the  delegates  are  the  Governments,  which  will  in  turn  examine  the  work 
accomplished  here  and  which  will  be  free  to  consent  thereto  or  to  refuse  their 
signatures.  If  it  is  desired  to  obtain  any  result,  it  is  necessary  to  make  mutual 
concessions  and  not  to  seek  to  insert  in  the  convention  clauses  which  are  contrary 
to  the  very  essence  of  war. 

He  thinks  that  he  may  say  that  the  axiom  "  war  ought  to  feed  war  "  is 
recognized  in  all  the  great  armies  of  Europe  and  it  will  be  impossible  to  do 
away  with  it.  If  the  commission  wishes  to  accomplish  a  useful  work,  Colonel 
Gross  von  Schvvarzhoff  believes  that  it  will  have  to  give  up  these  attempts. 
For  his  part  he  could  embrace  the  opinion  of  his  Excellency  Mr.  Beernaert, 
that  is,  that  the  points  on  which  understanding  cannot  be  reached  should  be 
passed  over  in  silence.  The  fact  exists.  It  is  possible  not  to  mention  it,  but 
it  cannot  be  forbidden ;  this  would  be  going  too  far. 

It  goes  without  saying  that  a  receipt  should  be  given  both  for  contributions 
in  money  and  requisitions  in  kind.  The  reimbursement  will  be  regulated,  as  Mr. 
l^AMMASCH  has  said,  after  the  conclusion  of  peace. 

Chevalier  Descamps  desires  to  recall  the  fact  that  it  was  desired  to  place 
stricter  limits  on  arbitrary  judgment  than  those  stipulated  in  1874.  Mr.  Lam- 
MASCH  has  advocated  a  peculiarly  dangerous  principle ;  according  to  him,  the 
necessity  of  exhausting  the  pecuniary  forces  of  the  enemy  as  far  as  possible 
ought  to  be  legalized.  This  course  would  end  in  completely  ruining  his 
1 108]  commerce.  This  is  a  view  which  Mr.  Descamps  would  not  like  to  endorse. 
It  is  proper  to  adopt  the  opinion  of  his  Excellency  Mr.  Beernaert  and  to 
lexpect  from  the  gradual  refinement  of  manners  the  results  which  it  is  impossible 
to  attain  by  means  of  a  convention. 

The  President  states  that  two  entirely  different  viewpoints  are  represented : 
the  one  according  to  which  it  is  desired  in  the  interests  of  the  weak  to  impose 
•clearly  defined  restrictions  on  the  occupant,  and  the  other  which  consists  in  say- 
ing nothing  about  the  rights  of  the  invader  and  consequently  about  the  limits 
that  it  is  desired  to  impose  upon  him. 

The  President  had  suggested  the  idea  of  abolishing  Article  40  and  dis- 
tcussing  Articles  41  and  42  with  a  view  to  securing  a  compromise  in  the  form  of 
a  new  wording.  In  the  face  of  the  two  contradictory  opinions  which  have  come 
'trp  in  these  deliberations,  he  desires  to  formulate  an  entirely  different  proposi- 
ttion,  to  wit: 

To  insert  Article  40,  which  contains  the  general  principle,  after  Article  5, 
rand  to  have  the  contents  of  Articles  41  and  42  appear  in  the  minutes  by  way  of 
suggestion  and  not  as  an  obligation.  The  President  thinks  that  this  proposi- 
tion is  in  accordance  with  the  original  idea  of  the  first  delegate  of  Belgium  to 
the  effect  that  Articles  41  and  42  should  be  abolished  and  merely  mentioned  in 
.the  minutes. 

In  this  way  an  eventual  convention  will  leave  open  the  questions  relating 
to  contributions  and  requisitions. 


NINTH  MEETING,  JUNE  12,  1899  531 

It  is  nevertheless  permissible  to  doubt  whether  this  mode  of  procedure  would 
be  more  advantageous  to  the  inhabitants. 

His  Excellency  Mr.  Beernaert  states  that  the  good-will  of  the  entire  as- 
sembly, actuated  by  a  desire  to  attain  a  tangible  result,  is  endeavoring  in  vain 
to  reconcile  irreconcilable  interests.  He  adds  that  if  it  is  stated  that  the  occupant 
may  collect  such  contributions  as  he  wishes,  independently  of  existing  taxes,  this 
is  not  a  restriction  but  the  recognition  as  a  law  of  a  fact  which  has  nothing  in 
common  with  law. 

Mr.  Beldiman  desires,  before  the  subcommission  decides  to  aboHsh  Articles 
41  and  42,  to  make  one  more  effort  to  reach  an  understanding,  notably  in  regard 
to  the  most  divergent  viewpoints :  that  represented  by  Mr.  Odier  and  the  military 
considerations  of  Colonel  Gross  von  Schwarzhoff. 

Inasmuch  as  there  are  four  different  propositions,  is  there  not  some  means 
of  asking  their  authors  to  meet  together  and  try  to  find  a  compromise  provision  ? 
He  hopes  that  eventually  the  different  opinions  will  not  be  found  irreconcilable, 
but  surely  the  assembly  is  not  in  a  position  now  to  pass  on  one  of  them. 

His  Excellency  Count  Nigra  sums  up  the  idea  that  is  clearly  gathered  from 
the  deliberations :  it  is  impossible  to  prevent  the  fact  and  impossible  to  recognize 
the  right. 

Under  these  circumstances  would  it  not  be  well  to  confine  the  matter  to  a 
single  article  worded  as  follows: 

The  occupant  cannot  require  anything  from  the  inhabitants  of  occupied 
countries  without  payment  or  receipt,  and  without  a  regular  requisition  on 
the  part  of  the  competent  military  authority. 

Jonkheer  van  Karnebeek  would  regret  the  adoption  of  this  provision  as 
much  as  that  of  the  system  set  forth  by  the  Belgian  delegates.  In  either  case 
a  step  would  be  taken  backward  with  respect  to  1874.  Then  at  least  the  idea  was 
expressed  that  contributions  of  money  could  only  be  required  as  a  substitute  for 
supplies  furnished  in  kind. 

The  system  advocated  by  the  delegates  of  Belgium,  as  well  as  the  amend- 
ment of  his  Excellency  Count  Nigra,  leaves  the  door  wide  open.  He  could 
therefore  not  endorse  them. 

If  the  proposition  which  he  has  formulated  does  not  appear  acceptable, 
either  the  original  text  of  Articles  41  and  42  or  the  text  proposed  by  Mr.  Rolin 
ought  to  be  preserved  at  least,  although  the  wording  thereof  does  not  appear  to 
him  sufficiently  positive. 

His  Excellency  Mr.  Beernaert  asks  in  what  respect  Mr.  van  Karnebeek 
sees  in  Article  41  a  restriction  imposed  upon  an  occupant. 

Jonkheer  van  Karnebeek  replies  that  the  sense  of  that  article  seems  to  him 
to  be  that  no  contribution  in  money  may  be  collected  except  as  the  equivalent 
of  a  tax,  of  supplies  to  be  furnished  in  kind,  or  of  a  fine.  This  wording  is 
opposed  to  the  application  of  the  system  quite  generally  adopted  at  the  end  of 
the  last  century  and  at  the  beginning  of  the  present  century,  namely,  the  system 
of  contributions  in  money  serving  to  enrich  the  belligerent. 

Mr.  Rolin  recalls  the  fact  that  the  object  of  new  wording  proposed  by  him 
was  to  reconcile  certain  divergent  tendencies  by  placing  restrictions  on  the  action 
of  the  occupant,  without,  however,  sanctioning  the  actual  authority  of  the 
occupant  as  a  right. 


532  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

[109]  However,  these  divergent  tendencies  appear  to  have  subsisted  neverthe- 
less, and  since  there  are  now  perhaps  too  many  texts  up  for  considera- 
tion, Mr.  RoLiN  withdraws  his  proposition. 

Colonel  Gross  von  Schwarzhoff  remarks  that  more  than  once  in  this  dis- 
cussion a  warning  has  been  given  that  no  backward  step  should  be  taken. 

It  appears  to  him  that  there  is  no  danger  of  this  in  any  event  as  no  step 
either  forward  or  backward  has  thus  far  been  taken ;  the  Brussels  Declaration, 
not  having  been  ratified,  has  remained  in  the  draft  stage. 

Mr.  Leon  Bourgeois  thinks  it  is  a  very  good  idea  to  leave  to  the  drafting 
committee  the  task  of  making  an  effort  toward  harmonizing  the  complex  principles 
just  set  forth.  As  a  matter  of  fact  it  seems  to  him  that  two  fundamental  ideas 
have  sprung  from  this  long  discussion.  On  the  one  hand  all  the  delegates  are 
agreed  that  they  do  not  wish  in  any  event  to  assign  the  character  of  right  to 
that  which  is  only  a  fact,  the  fact  of  war.  On  the  other  hand,  all  are  likewise 
agreed  in  seeking  the  means  of  diminishing  the  burdens  which  this  fact  of  war 
would  impose  on  the  populations. 

How  shall  these  two  interests  be  reconciled? 

Unanimity  appears  to  have  prevailed  in  regard  to  one  primary  point.  This 
is  that  certain  guaranties  of  form  should  be  established  for  the  levying  of  con- 
tributions, leaving  aside  their  nature  and  their  extent.  This  is  one  point  settled, 
which  enables  a  precise  provision  to  be  reached.  This  provision  might  prescribe 
that  the  levies  should  be  paid  in  consideration  of  a  receipt;  that  they  should  be 
in  pursuance  of  a  special  order  from  the  military  or  civil  authority,  and  finally 
that  these  levies  should  be  distributed  according  to  the  rules  in  force  in  time  of 
peace  in  the  occupied  territory. 

But  there  is  another  viewpoint  on  which  the  military  delegates  might  agree 
with  his  Excellency  Mr.  Beernaert  and  Mr.  Odier;  that  is  the  question  of 
"  fines."  It  will  be  admitted  that  the  imposition  of  a  fine  is  not  a  normal  pro- 
cedure which  may  be  applied  in  order  to  weaken  resistance,  and  that  it  is  a 
vexatious  penalty  which  could  only  be  warranted  by  a  very  reprehensible  act 
on  the  part  of  the  population  as  a  whole. 

On  these  two  points  no  risk  would  seem  to  be  run  of  recognizing  the  occu- 
pant as  having  rights,  and  in  this  way  the  objections  of  his  Excellency  Mr. 
Beernaert  would  be  satisfied. 

The  task  of  the  drafting  committee  would  therefore  consist  in  formulating 
a  definite  rule: 

1.  In  regard  to  the  mode  of  levying  contributions,  their  distribution,  and 
the  responsibility  of  the  authority  levying  them. 

2.  In  regard  to  the  cases  in  which  and  the  conditions  under  which  the  occu- 
pant may  impose  fines. 

It  would  be  the  duty  of  the  committee  to  seek  such  a  wording  as  would 
plainly  appear  to  have  no  other  purpose  than  to  assert  the  rights  of  the  occupied 
populations  against  the  possible  abuses  of  war. 

The  President  believes  that  it  will  be  very  difficult  for  the  committee  to  per- 
form its  task.  The  wording  adopted  at  Brussels  for  Articles  41  and  42  is  the 
result  of  laborious  effort  to  reconcile  different  opinions.  But  in  the  face  of 
the  absolutely  divergent  viewpoints  that  have  been  represented  here,  there  re- 
mains but  one  thing  to  do,  and  that  is  to  abolish  the  articles  which  give  rise 


NINTH  MEETING,  JUNE  12,  1899  533 

to  controversy  in  regard  to  special  rules  and  to  be  content  with  the  article  which 
proclaims  the  general  principle. 

It  will  be  necessary,  then,  to  leave  to  the  progress  of  civilization  and  to  the 
humanitarian  sentiments  of  heads  of  armies  the  task  of  looking  after  the  in- 
terests of  the  inhabitants  as  far  as  possible  when  contributions  are  to  be  levied. 

His  Excellency  Mr.  Beernaert  thinks  that,  as  Mr.  Bourgeois  has  pointed 
out  a  series  of  points  in  regard  to  which  there  are  hopes  of  reaching  an  agree- 
ment, the  abolition  of  Articles  41  and  42  would  perhaps  be  premature.  He 
supports  the  propositions  of  Messrs.  Bourgeois  and  Beldiman. 

General  Zuccari  is  of  opinion  that  if  it  is  desired  to  abolish  Articles  41  and 
42,  it  will  be  necessary  to  consider  requisitions  and  contributions  also  in  Article 
40. 

Jonkheer  van  Karnebeek  believes  that  the  situation  is  not  well  understood. 
The  propositions  made  do  not  represent  four  different  systems.  There  are  only 
three : 

1.  The  system  of  the  Belgian  delegates; 

2.  The  system  of  preparing  a  provision  on  the  basis  of  1874,  as  suggested  by 
Mr.  Bourgeois;  and 

3.  His  own  system,  which  is  more  extensive  in  its  scope  than  that  on  which 
the  text  of  1874  was  based. 

It  does  not  seem  to  him  that  Colonel  Gross  von  Schwarzhoff  really  ad- 
vocates a  different  principle,  as  the  explanation  given  by  him  relates  at 
[110]  bottom  only  to  what  is  defined  in  the  original  Brussels  draft  and  is  there- 
fore in  accordance  with  the  system  of  Article  41. 

His  Excellency  Mr.  Beernaert  observes  that  not  only  has  the  Declaration 
of  Brussels  not  been  ratified,  as  was  remarked  by  Colonel  Gross  von  Schwarz- 
hoff, but  that  there  was  not  even  any  vote.  Belgium,  the  Netherlands,  and  still 
other  countries  have  admitted  nothing  with  regard  to  contributions  and  requisi- 
tions. 

The  President  deems  it  useful  that  the  assembly  should  first  make  known 
its  desire  to  abolish  Articles  41  and  42,  or  to  preserve  them  subject  to  subse- 
quent change  of  text. 

Mr.  Bourgeois  insists  that  his  proposition  be  first  put  to  a  vote. 

Mr.  Beldiman  also  thinks  that  a  vote  cannot  be  taken  now  on  the  maintenance 
of  the  article,  as  it  might  be  necessary  later  on  to  vote  for  its  abolition  in  case 
the  form  of  wording  to  be  found  by  the  drafting  committee  should  appear  in- 
adequate. 

His  Excellency  Mr.  Beernaert  also  thinks  that  the  proposition  of  Mr. 
Bourgeois  constitutes  a  previous  question. 

Mr.  Bourgeois,  summing  up,  says  that  the  task  of  the  drafting  committee 
will  therefore  be  to  gather  from  the  discussion  those  points  in  regard  to  which 
an  agreement  might  be  reached,  and  to  eliminate  those  in  regard  to  which  an 
understanding  will  have  been  recognized  as  being  impossible. 

The  proposition  of  Mr.  Bourgeois  is  adopted. 

Mr.  Bourgeois,  at  the  request  of  the  President,  declares  that  he  is  ready 
to  take  part  in  the  labors  of  the  committee. 

The  meeting  adjourns. 


TENTH   MEETING 

JUNE  17,  1899 


Mr.  Martens  presiding. 

The  minutes  of  the  ninth  meeting  are  read  and  adopted. 

The  President  says  that  several  delegates  have  expressed  a  desire  to  have 
the  minutes  printed  right  now  and  distributed  among  the  delegates  for  their 
personal  use.  These  documents  would  be  very  useful  to  them  in  preparing  the 
reports  which  they  are  to  send  to  their  respective  Governments. 

Mr.  Raffalovich  remarks  that  there  would  be  insurmountable  difficulties  in 
the  way  of  an  immediate  publication  of  these  documents.  It  would  be  impossible, 
however  willing  the  Secretariat  might  be,  to  properly  perform  this  additional 
labor.     He  proposes  that  it  be  done  after  the  closing  of  the  Conference. 

His  Excellency  Mr.  Beernaert  asks  that  before  the  printing  is  done,  the 
proof  sheets  be  given  to  the  members  of  the  subcommission  in  order  that  they 
may  review  the  passages  which  concern  them. 

He  embraces  this  opportunity  to  thank  and  congratulate  the  Secretariat  for 
the  accuracy  and  impartiality  with  which  it  is  performing  its  arduous  task. 

It  is  decided  that  action  shall  be  taken  in  accordance  with  the  opinion  of 
the  President,  Mr.  Raffalovich,  and  his  Excellency  Mr.  Beernaert,  that  is, 
that  the  minutes  be  sent  to  the  printer  after  the  closing  of  the  labors  of  the  Con- 
ference and  that  the  proof  sheets  be  delivered  to  each  of  the  members  of  the 
subcommission. 

The  President  says  that  Mr.  Asser,  president  of  the  first  subcommission  of 
the  Second  Commission  which  has  just  terminated  its  labors,  asks  permission  on 
behalf  of  his  colleagues  to  submit  the  report  of  the  first  subcommission  directly 
to  the  Conference  assembled  in  plenary  session. 

This  procedure  would  enable  time  to  be  gained,  and  the  members  of  the 
assembly  are  requested  to  make  known  whether  they  permit  its  adoption. 

Mr.  Beldiman  asks  that  no  change  be  made  in  a  procedure  which  has  al- 
ready been  adopted  in  plenary  session.  This  modification  exceeds  the  jurisdic- 
tion of  the  subcommission.     As  far  as  he  is  concerned,  he  does  not  think  he  can 

endorse  the  proposition  of  Mr.  Asser. 

[Ill]   Mr.  Bourgeois  thinks  that  Mr.  Beldiman  is  actuated  by  a  scruple  of 

form  which  is  justified  for  that  matter  in  his  opinion.     In  order  to  take 

this  into  account,  a  meeting  of  the  Commission  might  be  held  just  before  the 

plenary  session  at  which  meeting  the  report  could  be  read  without  being  discussed. 

Baron  Bildt,  who  is  ready  to  endorse  any  proposition  calculated  to  accelerate 
the  progress  of  the  work,  thinks  that  whenever  an  objection  has  been  made  by  one 
of  the  delegates  it  should  be  taken  into  account. 

534 


TENTH  MEETING,  JUNE  17,  1899  535 

But  moreover,  in  the  first  subcommission  a  provision  was  adopted  by  a 
tnajority  of  one  vote.  As  it  was  a  question  of  an  obligation  which  some  of  the 
delegates  considered  too  onerous  for  small  neutral  States,  these  delegates  will 
probably  desire  to  revert  to  this  point  in  the  plenary  session  of  the  Com- 
mission in  order  to  reach  an  understanding  without  which  they  will  probably 
not  be  able  to  sign  except  with  reservations. 

As  a  discussion  on  this  point  is  inevitable,  it  is  better  for  it  to  take  place 
before  the  Second  Commission  than  in  plenary  session  of  the  Conference. 
Baron  Bildt  therefore  sides  with  Mr.  Beldiman. 

The  President,  taking  into  account  the  observation  of  Baron  Bildt,  which  is 
approved  by  the  subcommission,  will  reach  an  understanding  on  this  subject  with 
Mr.  AssER. 

The  President  says  that  the  drafting  committee  has  unanimously  agreed 
to  present  to  the  subcommission  the  text  of  four  articles  relating  to  contributions 
and  requisitions.^  These  new  texts  are  preceded  by  a  very  slightly  revised  word- 
ing of  Article  5,  relating  to  established  taxes,  which  has  already  been  voted  at  its 
first  reading.     They  are  worded  as  follows : 

Article  5  (already  voted) 

If,  in  the  territory  occupied,  the  occupant  collects  the  taxes,  dues,  and  tolls  imposed 
for  the  benefit  of  the  State,  he  shall  do  so,  as  far  as  is  possible,  in  accordance  with  the 
rules  of  assessment  and  incidence  in  force,  and  shall  in  consequence  be  bound  to  defray  the 
expenses  of  the  administration  of  the  occupied  territory  to  the  same  extent  as  the  legitimate 
Government  was  so  bound. 

Article  A 

In  addition  to  the  taxes  mentioned  in  the  above  article,  the  occupant  can  levy  other 
money  contributions  in  the  occupied  territory  only  for  the  needs  of  the  army  or  of  the  ad- 
ministration of  the  territory  in  question. 

Article  B 

No  general  penalty,  pecuniary  or  otherwise,  shall  be  inflicted  upon  the  population  on 
account  of  the  acts  of  individuals  for  which  they  cannot  be  regarded  as  jointly  and  severally 
responsible. 

Article  C 

No  contribution  shall  be  collected  except  under  a  written  order,  and  on  the  responsi- 
t)ility  of  a  commander  in  chief. 

The  collection  of  the  said  contribution  shall  only  be  effected  as  far  as  possible  in  ac- 
cordance with  the  rules  of  assessment  and  incidence  of  the  taxes  in  force. 

For  every  contribution  a  receipt  shall  be  given  to  the  contributors. 

Article  D 

Requisitions  in  kind  and  services  shall  not  be  demanded  from  municipalities  or  inhabit- 
ants except  for  the  needs  of  the  army  of  occupation.  They  shall  be  in  proportion  to  the 
resources  of  the  country,  and  of  such  a  nature  as  not  to  involve  the  population  in  the  obli- 

gatioil  of  taking  part  in  the  operations  against  their  country. 
[112]    Such  requisitions  and  services  shall  only  be  demanded  on  the  authority  of  the  com- 
mander in  the  locality  occupied. 
Contributions  in  kind  shall,  as  far  as  possible,  be  paid  for  in  cash,  and  if  not,  vouchers 
shall  be  given. 

1  See  annex  B. 


536  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

Finally,  Mr.  Crozier  proposed  the  following  articles:  "Article  43  (pro- 
visional number).  Every  money  contribution  or  requisition  in  kind  intended  to 
serve  in  the  operations  or  for  the  maintenance  of  the  occupant  shall  be  returned 
or  paid  for." 

The  examination  of  the  texts  proposed  to  the  subcommission  by  the  drafting 
committee  is  now  taken  up. 

Before  discussing  them,  the  President  wishes  to  thank  warmly  the  members 
of  this  committee,  as  well  as  his  Excellency  Mr.  Beernaert  and  Messrs.  van 
Karnebeek  and  Odier,  who  have  kindly  lent  him  their  assistance. 

In  view  of  these  texts.  Lieutenant  Colonel  von  Khuepach  and  Captain 
Crozier  withdraw  those  which  they  had  proposed. 

Mr.  Odier,  on  behalf  of  the  Swiss  delegation  and  in  pursuance  of  orders  from 
his  Government,  asks  that  the  following  declaration  be  inserted  in  the  minutes : 

In  taking  part  in  the  discussion  of  the  articles  of  the  draft  of  an  inter- 
national declaration  concerning  the  laws  and  customs  of  war,  and  notably 
the  articles  relating  to  military  authority  on  the  territory  of  the  hostile 
State,  the  representatives  of  Switzerland  in  no  wise  mean  to  admit  thereby 
that  the  territory  of  the  Swiss  Confederation  may  be  occupied  by  a  foreign 
army,  for  such  an  occupation  could  only  take  place  in  consequence  of  a  viola- 
tion of  Swiss  neutrality,  which  is  recognized  by  the  Powers  and  always 
scrupulously  observed  by  Switzerland. 

His  Excellency  Mr.  Beernaert  states  that  he  has  on  several  occasions  made 
similar  observations  in  regard  to  Belgium,  and  also  asks  that  this  statement  be 
inserted  in  the  minutes. 

His  Excellency  Mr.  Eyschen  makes  the  same  request. 

The  President  records  the  declarations  of  Mr.  Odier  and  their  Excellencies 
Messrs.  Beernaert  and  Eyschen. 

Mr.  Rolin  declares  that  the  spirit  of  the  text  as  worded  by  the  committee 
is  in  accordance  with  the  declarations  of  the  preceding  speakers.  It  has  never 
been  a  question  of  recognizing  the  occupant  as  having  a  right,  but  of  limiting  the 
consequences  of  the  fact  of  occupation. 

The  new  wording  of  Article  5  (already  voted)  is  unanimously  adopted  in  the 
terms  proposed  by  the  committee. 

Article  A,  proposed  by  the  committee,  is  now  taken  up. 

Mr.  Odier  regrets  that  he  cannot  accept  this  wording  of  Article  A,  in  which 
he  himself  had  participated,  but  he  has  since  received  different  instructions  which 
compel  him  to  propose  amendments  to  Articles  A,  C  and  D  on  behalf  of  his 
Government  and  to  propose  a  new  Article  E.  He  proposes  the  following  word- 
ing for  Article  A : 

//,  in  addition  to  the  taxes  mentioned  in  the  above  article,  the  occupant 
levies  other  money  contributions  in  the  occupied  territory,  this  shall  be  done 
only  in  case  of  absolute  necessity  and  for  the  needs  of  the  army  or  of  the 
administration  of  the  territory  in  question.  , 

The  modification  relates  to  two  points: 

1.  The  employment  of  the  doubtful  form  by  adding  the  word  "  if  "  at  the 
beginning  of  the  article. 

2.  The  introduction  of  the  words  "  in  case  of  absolute  necessity." 


TENTH  MEETING,  JUNE  17,  1899  537 

Mr.  Leon  Bourgeois  sees  no  objection  to  the  acceptance  of  Mr.  Odier's 
amendment. 

Although  the  wording  of  Article  A  does  not  satisfy  him,  his  Excellency  Mr. 
Beernaert,  in  a  spirit  of  conciliation,  declares  his  readiness  to  vote  for  it  either 
with  Mr.  Odier's  amendment,  which  appears  to  him  preferable,  or  even  in  its 
present  form. 

Colonel  Gross  von  Schwarzhoff,  referring  to  his  detailed  explanation  in 
the  drafting  committee,  declares  that  the  same  grave  reasons  which  he  has 
already  stated  in  the  course  of  the  preceding  meeting  prevent  him  from  accept- 
ing the  proposition  of  Mr.  Odier. 

Mr.  Beldiman  does  not  believe  that  there  are  any  insurmountable  objections 
to  adopting  the  words  proposed  by  Mr.  Odier  :  "  in  case  of  absolute  necessity." 

However,  the  wording  proposed  by  the  committee  is  the  result  of  a  great 
effort. 

In  order  not  to  jeopardize  the  unanimity  secured,  he  deems  it  preferable  not 
to  adopt  the  modification  proposed  by  the  Swiss  delegate. 

Mr.  Leon  Bourgeois  is  of  opinion  that  the  words  "  for  the  needs  of  the 

army,"  etc.,  sufficiently  limit  the  exercise  of  the  right  of  collection  and  satisfy 

the  same  fears  as  the  addition  suggested  by  the  Federal  Government.     If 

[113]  the  latter  would  consent  to  give  up  its  amendment,  the  desired  unanimity 

might  be  recovered. 

Mr.  Lammasch,  in  consideration  of  the  efforts  which  the  preparation  of  the 
draft  has  cost,  endorses  the  words  of  Mr.  Beldiman. 

The  President  asks  the  Swiss  delegate  whether  he  would  not  consent  to 
have  the  text  of  his  declarations  embodied  in  the  minutes. 

Mr.  Odier,  having  formal  instructions,  regrets  that  he  cannot  comply  with 
this  request.  His  amendment  more  strictly  defines  the  cases  of  necessity  in  which 
it  would  be  permissible  to  collect  contributions  in  money  other  than  taxes,  duties, 
and  tolls. 

The  expression  "  the  needs  of  the  army "  is  deemed  too  vague  by  his 
Government  which  considers  that  the  commander  ought  not  to  resort  to  the 
means  in  question  except  in  case  of  absolute  necessity.  In  the  absence  of  such 
a  restriction,  the  commanders  may  estimate  the  needs  of  their  army  in  very  dif- 
ferent ways. 

Colonel  Gross  von  Schwarzhoff  remarks  that  the  vague  character  of  the 
text  was  chosen  intentionally.  To  attempt  to  define  the  details  of  limitation  of 
the  rights  of  the  occupant  would  be  to  jeopardize  the  success  of  the  work  of  the 
committee.     He  therefore  requests  Mr.  Odier  not  to  insist. 

The  subcommission  accepts  the  first  part  of  the  amendment  of  Mr.  Odier, 
and  the  article  thus  modified  is  unanimously  adopted,  with  the  exception  of  one 
vote  (that  of  Switzerland)  : 

If,  in  addition  to  the  taxes  mentioned  in  the  above  article,  the  occupant 
levies  other  money  contributions  in  the  occupied  territory,  this  shall  only  be 
for  the  needs  of  the  army  or  of  the  administration  of  the  territory  in  question. 

Article  B  is  adopted  unanimously  with  the  text  proposed  by  the  committee. 

Article  C  is  now  taken  up. 

Mr.  Odier  proposes  to  word  the  last  paragraph  as  follows : 

For  all  contributions  a  receipt  shall  be  given  to  the  persons  making  the 


538  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

contributions,  and  this  receipt  shall  entitle  them,  upon  the  restoration  of 
peace,  to  a  refunding  of  the  amount  paid. 

According  t6  him,  a  simple  receipt  with  recognition  of  the  right  to  reim- 
bursement does  not  afford  a  sufficient  guaranty  to  the  populations. 

His  Government  wished  to  expressly  guarantee  the  right  to  reimbursement 
of  the  sum  paid. 

Mr.  Leon  Bourgeois,  expressing  his  personal  opinion,  opposes  the  addition 
of  the  sentence  proposed  by  the  Swiss  delegate. 

The  question  of  the  indemnities  to  be  allowed  is  within  the  domain  of  the 
municipal  law  of  each  State.  He  does  not  think  it  is  within  the  jurisdiction  of 
the  subcommission. 

If  the  principle  involved  therein  were  admitted,  it  would  likewise  be  neces- 
sary to  enter  into  a  series  of  details  which  it  would  be  difficult  to  regulate  here. 
By  whom  should  the  reimbursement  be  made?  How  insure  the  performance  and 
enforcement  of  this  obligation?  In  the  opinion  of  the  committee,  the  receipt 
is  an  authentic  title  in  the  hands  of  the  State,  which  will  enable  it  to  equitably 
distribute,  at  the  end  of  the  campaign,  and  if  it  sees  fit,  the  indemnities  due.  He 
therefore  proposes  that  the  text  be  maintained. 

Colonel  Gross  von  Schwarzhoff  endorses  these  observations ;  the  State  to 
which  the  person  furnishing  the  contribution  belongs  is  in  duty  bound  to  com- 
pensate him,  but  it  cannot  be  stipulated  in  an  international  convention  that  a 
State  contracts  an  obligation  towards  its  subjects. 

Mr.  Beldiman  recalls  the  fact  that  this  question  was  settled  in  1874  in  the 
same  way  after  mature  deliberations  and  in  spite  of  the  same  objections.  It 
would  be  very  difficult  to  find  a  better  solution. 

The  President  requests  the  Swiss  delegates  not  to  insist  on  their  propo- 
sition, since  the  question  raised  by  them  comes  entirely  within  the  domain  of 
municipal  law  and  cannot  be  regulated  by  an  international  convention. 

Colonel  Kiinzli  declares  that,  according  to  his  instructions,  he  is  obliged  to 
maintain  the  amendment  'of  the  Swiss  delegation. 

General  Sir  John  Ardagh  proposes  the  adoption  of  an  additional  article  in 
regard  to  reimbursement  for  receipts  and  vouchers.  This  would  enable  Mr, 
Odier  to  accept  Article  C  without  prejudicing  the  question  of  the  obligation  to 
make  reimbursement. 

His  Excellency  Mr.  Beernaert  calls  attention  to  a  slight  modification  of  form 
to  be  introduced  into  paragraph  2  of  Article  C : 

This  collection  of  contributions  shall  be  effected  as  far  as  possible  in 
accordance  with  the  rules  of  assessment  and  incidence  of  the  taxes  in  force. 

The  question  is  referred  to  the  drafting  committee.  The  choice  of  another 
expression  to  be  eventually  substituted  for  the  words  "  commander  in  chief  "  is 
likewise  left  to  the  committee. 

Mr.  Beldiman  observes  that  the  words  "  commander  in  chief "  do  not 
designate  a  special  grade,  but  refer  to  the  person  who  is  acting  as  commander 

in  chief. 
[114]   In  answer  to  a  question  by  Mr.  Bourgeois,  Colonel  Kiinzli  states  that  his 
instructions  compel  him  to  vote  against  the  whole  article  unless  the  amend- 
ment of  the  Swiss  delegation  is  adopted. 


TENTH  MEETING,  JUNE  17,  1899  539 

Article  C  is  unanimously  adopted  with  the  exception  of  one  vote  (that  of 
Switzerland). 

Article  D  is  now  taken  up. 

Mr.  Odier  proposes  to  substitute  the  word  "  receipt "  (regus)  for  the  word 
"  vouchers  "  (quittances)  in  the  third  paragraph,  and  to  add  thereto :  "  giving  right 
to  a  just  indemnity." 

His  Excellency  Mr.  Beernaert  favors  this  substitution  because  he,  like  Mr. 
Odier,  is  of  opinion  that  the  furnishing  of  supplies  in  kind  is  usually  evidenced  by 
a  receipt  and  not  by  a  voucher. 

As  regards  the  principle  involved  in  the  indemnities  to  which  the  receipts 
would  give  a  right,  Colonel  Gross  von  Schwarzhoff  states  that  he  regrets  being 
obliged  to  make  the  same  objections  thereto  as  he  expressed  before  against  the 
other  Swiss  amendments  in  general. 

Mr.  Beldiman,  for  the  sake  of  securing  unanimity  in  all  cases  possible,  pro- 
poses to  vote  by  paragraph  since  the  amendment  of  the  Swiss  delegation  relates 
only  to  paragraph  3. 

The  President,  endorsing  this  proposition,  puts  paragraphs  1  and  2  suc- 
cessively to  a  vote,  and  they  are  unanimously  adopted. 

Paragraph  3  is  adopted  unanimously  with  the  exception  of  Switzerland, 
which  votes  in  the  negative. 

The  article  will  read  as  follows,  the  words  "  a  receipt "  being  substituted 
therein  for  "  vouchers  " : 

Requisitions  in  kind  and  services  shall  not  be  demanded  from  municipali- 
ties or  inhabitants  except  for  the  needs  of  the  army  of  occupation.  They 
shall  be  in  proportion  to  the  resources  of  the  country,  and  of  such  a  nature  as 
not  to  involve  the  population  in  the  obligation  of  taking  part  in  the  operations 
against  their  country. 

Such  requisitions  and  services  shall  only  be  demanded  on  the  authority 
of  the  commander  in  the  locality  occupied. 

Contributions  in  kind  shall,  as  far  as  possible,  be  paid  for  in  cash,  and 
if  not,  a  receipt  shall  be  given. 

Mr.  Leon  Bourgeois  thinks  that  he  is  voicing  the  intentions  of  the  drafting 
committee  and  of  the  subcommission  by  making  an  urgent  appeal  to  the  Swiss 
delegates  to  represent  to  their  Government  how  regrettable  it  is  that  they  are 
unable  to  accede  to  propositions  which  would  have  met  unanimous  endorsement  if 
the  Swiss  Government  had  been  able  to  consent  to  them. 

He  points  out  that  there  has  never  been  any  intention  of  recognizing  the 
fact  as  a  right,  and  he  hopes  that  the  Swiss  Government  will  be  convinced  that 
an  endorsement  of  the  propositions  of  the  drafting  committee  can  but  be  in 
conformity  with  the  interests  of  the  populations  themselves  and  will  never 
entail  consequences  which  a  spirit  of  patriotism  could  not  countenance. 

Colonel  Kiinzli  says  that  the  delegates  from  Switzerland  will  take  this 
appeal  into  account. 

Jonkheer  van  Karnebeek,  with  a  view  to  showing  how  difficult  it  is  to 
determine  in  advance  the  extent  to  which  those  entitled  to  reimbursement  should 
be  indemnified,  cites  as  an  example  the  obstacles  recently  encountered  in  the 
regulation  of  a  similar  question. 

It  was  a  question  of  an  examination  in  time  of  peace  of  a  law  submitted  to 
the  States  General  of  the  Netherlands  concerning  the  indemnities  due  to  those 


540  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

whose  property  might  be  damaged  by  inundation  of  the  country  in  case  of  war. 

These  difficulties,  not  only  from  a  legal  standpoint  but  also  from  the  stand- 
point of  equity,  demonstrated  that  it  is  better  to  postpone  a  decision  in  such 
matters  to  the  time  when  the  event  occurs. 

He  hopes  that  this  consideration  may  perhaps  tend  to  induce  the  Swiss  Gov- 
ernment to  change  its  opinion. 

The  President,  after  renewing  his  thanks  to  the  drafting  committee,  says 
that  in  accordance  with  a  previous  decision,  these  articles  are  to  be  inserted  in 
Chapter  I. 

Mr.  Odier  proposes,  in  the  name  of  the  Swiss  delegation,  a  new  article 
worded  as  follows: 

No  reprisals  may  be  exercised  against  the  population  of  the  occupied  ter- 
ritory for  having  openly  taken  up  arms  against  the  invader. 

The  President  proposes  to  postpone  its  examination  until  Articles  9  and 
10  are  discussed. 

This  suggestion,  endorsed  by  Mr.  Odier,  is  adopted. 
Article  6  of  the  Brussels  draft  is  read: 

An  army  of  occupation  can  only  take  possession  of  cash,  funds,  and  realizable  securi- 
ties which  are  strictly  the  property  of  the  State,  depots  of  arms,  means  of  transport,  stores 
and  supplies,  and,  generally,  all  movable  property  belonging  to  the  State  which  may  be 

used  for  the  operations  of  the  war. 
[115]    Railway  plant,  land  telegraphs,  steamers  and  other  ships,  apart  from  cases  governed 

by  maritime  law,  as  well  as  depots  of  arms  and.  generally,  all  kinds  of  war  material, 
even  if  belonging  to  companies  or  to  private  persons,  are  likewise  material  which  may  serve 
for  military  operations  and  which  cannot  be  left  by  the  army  of  occupation  at  the  disposal  of 
the  enemy.  Railway  plant,  land  telegraphs,  as  well  as  steamers  and  other  ships  above  men- 
tioned shall  be  restored  and  compensation  fixed  when  peace  is  made. 

The  President  recalls  the  fact  that  Mr.  Rolin  proposed  a  new  wording  in 
accordance  with  the  conclusions  of  his  Excellency  Mr.  Beernaert,  as  follows : 

If  the  army  which  invades  or  occupies  a  territory  proceeds  to  seize 
movable  objects  which  may  be  used  for  the  operations  of  the  war,  such  as 
railway  or  telegraph  plant,  steamers  and  other  ships  (apart  from  cases  gov- 
erned by  maritime  law),  arms  and  munitions  of  war,  this  seizure  shall  never 
have  any  other  character  than  that  of  a  sequestration  so  far  as  concerns  those 
of  the  objects  which  are  the  property  of  companies  or  of  private  persons. 

Especially  the  plant  of  railways  coming  from  neutral  States,  whether  the 
property  of  those  States  or  of  companies  or  of  private  persons,  shall  be 
sent  back  to  them  as  soon  as  possible  and  shall  not  be  used  for  military 
operations. 

His  Excellency  Mr.  Beernaert,  being  of  opinion  that  the  two  paragraphs 
of  this  article  are  based  on  different  ideas,  proposes  that  they  be  discussed 
separately. 

This  proposition  meets  no  objection  and  the  President  opens  the  discussion 
on  the  first  paragraph. 

His  Excellency  Mr.  Beernaert  declares  that  he  cannot  endorse  the  amend- 
ment of  Mr.  Rolin,  which  tends  to  abolish  this  paragraph  as  being  useless.  He 
justifies  the  maintenance  thereof  because  the  right  of  the  occupant  is  thus  re- 
stricted to  things  which  are  of  a  nature  to  serve  in  the  operations  of  the  war. 


TENTH  MEETING,  JUNE  17,  1899  541 

Mr.  Renault  thinks  that  there  would  not  be  any  great  advantage  in  abohsh- 
ing  it  inasmuch  as  the  provisions  of  Article  38,  although  embodied  by  the  sub- 
commission  in  the  first  chapter,  deal  only  with  the  private  property  of  individuals 
and  do  not  involve  the  private  property  of  the  State.  According  to  Mr.  Rolin's 
ideas,  all  limitation  would  disappear  as  regards  the  confiscation  of  the  property 
of  the  State. 

Mr.  Rolin  says  that  as  his  Excellency  Mr.  Beernaert  has  no  objections 
to  the  maintenance  of  the  first  paragraph,  he  withdraws  the  amendment  which 
he  had  made  with  a  view  to  reconciling  the  various  opinions. 

Paragraph  1  is  unanimously  adopted. 

Paragraph  2  is  now  taken  up. 

His  Excellency  Mr.  Beernaert  thinks  that  the  subcommission  could  not  vote 
for  the  second  paragraph  of  Article  6  without  acting  in  contradiction  to  the 
principles  already  adopted  in  regard  to  the  inviolability  of  private  property  and 
the  prohibition  of  all  pillage.  As  a  matter  of  fact,  this  paragraph  authorizes 
the  belligerents  to  place  their  hands  on  things  which  constitute  a  part  of  private 
property. 

The  necessities  of  war  may  justify  their  seizure  and  sequestration,  but  not 
their  confiscation.  It  would  be  all  the  more  difficult  for  him  to  vote  for  the 
second  paragraph  because  the  inviolability  of  private  property  is  a  constitutional 
rule  in  Belgium  except  in  the  case  of  expropriation.  The  Belgian  delegation 
endorses  the  amendment  made  by  Mr.  Rolin  in  regard  to  this  paragraph. 

Mr.  Rolin,  in  connection  with  an  observation  made  by  his  Excellency  Mr. 
Beernaert,  expressly  states  that  it  is  necessary  to  mention  the  invader  and  not 
the  occupant,  inasmuch  as  it  might  happen  that  an  invading  belligerent  would 
seize  the  articles  in  question  without  there  being  any  occupation. 

Colonel  Gross  von  Schwarzhoff  considers  that  the  question  laid  down  in 
this  paragraph  is  of  very  great  importance.  He  asks  whether  the  sequestration 
implies  a  right  to  use  the  objects  therein  mentioned. 

His  Excellency  Mr.  Beernaert  observes  that  the  right  of  requisition  has 
been  recognized,  but  how  is  it  possible  to  sanction  in  an  international  conven- 
tional act  an  exception  to  the  inviolability  of  private  property? 

Colonel  Gross  von  Schwarzhoff  proposes  to  invite  the  drafting  committee 
to  find  a  satisfactory  form  of  wording. 

This  proposition  is  adopted. 

Mr.  Odier  proposes  that  a  third  paragraph  be  added  to  Article  6,  worded 
as  follows :  "  Railway  plant  belonging  to  the  State  shall  likewise  be  restored 
upon  the  conclusion  of  peace." 

Pie   is   of   opinion   that  it   would   not   only   be   of  great   importance   to 
[116]   specify  as  far  as  possible  the  material  which  is  to  be  restored  after  the 
conclusion  of  peace,  but  that  it  would  be  moreover  of  great  interest  to 
sanction  this  principle  in  a  convention. 

It  is  especially  after  a  disastrous  war  that  the  confiscation  of  the  railway 
plant  of  a  State  would  constitute  an  enormous  impediment  to  the  restoration  of 
commerce  and  a  hindrance  to  the  reprovisioning  of  the  country. 

Mr.  Bille  has  laid  upon  the  table  an  amendment  to  Article  6  consisting  of 
the  addition  in  paragraph  2  after  the  words  "  land  telegraphs "  of  the  words 
"  including  landing  cables  established  within  the  maritime  territorial  limits  of  the 
State." 


542  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

He  bases  his  action  on  the  following  considerations : 

The  same  amendment  was  presented  by  the  delegate  from  Denmark  in  1874/ 
He  was  instructed  by  his  Government  to  call  the  special  attention  of  the  dele- 
gates to  the  ever-increasing  importance  of  the  question  regarding  the  protection 
to  be  given  to  submarine  cables.  He  was  instrumental  in  having  embodied  in 
the  Protocol  a  recommendation  that  the  Governments  should  take  up  this  ques- 
tion. 

However,  there  was  a  lack  of  time  to  deal  with  the  subject  and  the  Danish 
delegate  had  to  be  content  with  proposing  the  same  amendment  in  regard  to 
landing  cables. 

The  Government  of  Denmark  wondered  whether  the  opportunity  now  pre- 
sented should  not  be  seized  in  order  to  resume  consideration  of  the  question  of 
submarine  cables  at  the  point  where  the  Brussels  Conference  left  it.  However, 
as  the  question  is  not  referred  to  in  the  Mouravieff  circular,  it  may  be  contended 
that  the  Conference  has  no  jurisdiction  on  this  subject.  It  may  be  further 
objected  that  the  question  of  submarine  cables  comes  under  the  sway  of  mari- 
time law  and  therefore  remains  outside  the  scope  of  the  draft  Declaration  of 
Brussels. 

Finally,  there  is  no  doubt  but  that  this  question  offers  special  difficulties 
whose  solution  in  this  commission  might  be  further  impeded  by  the  fact  that 
the  delegates  would  perhaps  have  to  consult  their  Governments  at  length  on  the 
subject.  For  these  reasons  Mr.  Bille  refrained  from  making  reference,  in  the 
amendment  to  Article  6,  to  submarine  cables  in  their  whole  extent.  He  was 
content  to  propose  that  landing  cables  in  territorial  waters,  that  is,  within  a 
radius  of  three  marine  miles  from  the  coast,  be  classed  with  land  telegraphs. 
This  amendment  cannot  offer  any  of  the  difficulties  which  might  have  been 
raised  by  the  mention  of  submarine  cables. 

If  the  amendment  should  be  accepted  the  gap  created  by  this  omission 
would  nevertheless  still  remain.  Equity  will  always  require  that  the  submarine 
cables  connecting  the  belligerent  with  other  countries  enjoy  international  pro- 
tection on  the  same  basis  as  inland  telegraphs,  and  that  neutral  property  have 
at  least  the  same  privileges  as  are  insured  to  enemy  private  property.  Mr.  Bille 
expresses  confidence  that  this  Conference  will  not  wish  to  exclude  submarine 
cables,  which  represent  enormous  interests,  from  the  domain  of  this  mutual 
insurance  company  against  the  abuses  of  force  in  time  of  war  which,  according 
to  the  happy  words  of  the  President  of  the  Commission,  it  is  the  purpose  to 
organize  among  the  States. 

By  means  of  the  foregoing  observations,  Mr.  Bille  therefore  desires  to  have 
it  appear  in  the  minutes  that  the  question  of  submarine  cables  remains  to  be 
solved,  and  he  would  like  to  be  able  to  add  that  if  this  Conference  declares  itself 
incompetent  in  this  regard,  it  nevertheless  desires  to  see  it  submitted  to  another 
conference  better  prepared  to  regulate  it. 

His  Excellency  Mr.  Beernaert  recalls  the  proposition  which  he  formulated 
to  the  effect  that  a  new  paragraph  worded  as  follows  be  added  to  Article  6 : 

The  plant  of  railways  coming  from  neutral  States,  whether  the  property 
of  those  States  or  of  companies,  shall  be  sent  back  to  them  as  soon  as  possi- 
ble and  shall  not  be  used  for  military  operations. 

Like  Mr.  Bille,  he  wishes  to  state  a  few  words  in  support  of  his  proposition. 


TENTH  MEETING,  JUNE  17,  1899  543 

The  plant  of  railways  coming  from  neutral  States  should  in  all  cases  be 
governed  by  other  rules  than  those  of  the  belligerents. 

It  is  a  question  here  not  only  of  private  property  but  of  the  property  of 
foreigners  and  of  things  which  their  owners  themselves  could  not  devote  to  the 
use  of  war  without  ceasing  to  be  neutral. 

There  is  therefore  a  threefold  reason  why  the  belligerent  should  not  be 
allowed  either  to  seize  such  material  or  to  use  it  for  himself. 

It  is  useless  to  lay  stress  upon  the  extreme  importance  possessed  nowadays 
by  transportation  material  in  time  of  war,  and  on  the  fact  that  this  material  can- 
not be  used  in  a  manner  contrary  to  the  obligations  of  neutrality. 

His  Excellency  Mr.  Eyschen  would  like  to  add  a  few  observations  of  a 
practical  nature  to  the  considerations  of  equity  and  justice  set  forth  by  Mr. 
Beernaert. 

In  recent  wars  the  right  of  requisition  of  material  coming  from  neutral 
[117]   railroads  has  occasionally  been  abused.     After  being  requisitioned  it  has 
been  retained  throughout  the  campaign  when  it  could  and  ought  to  have 
been  returned. 

The  effect  of  the  proposed  amendment  would  be  especially  felt  in  the  re- 
lations of  railroads  situated  on  the  frontiers  of  two  countries  and  furthermore 
in  the  relations  created  by  the  great  international  trains. 

It  often  occurs  that  highly  important  relations  exist  between  two  industrial 
basins  situated  in  contiguous  countries,  as,  for  instance,  where  coal  is  situated 
on  one  side  and  minerals  on  the  other.  In  this  case  an  exchange  of  several 
thousand  cars  is  made  each  week.  It  also  happens  that  a  certain  part  of  a 
country  is  dependent  upon  a  seaport  situated  on  neutral  territory  whose  com- 
merce in  the  first  country  compels  it  to  send  a  considerable  amount  of  rolling 
stock  there.  The  maintenance  of  all  these  peaceful  and  fruitful  relations  should 
be  assured  during  war.  If  they  are  disturbed,  not  only  the  capital  invested  in 
industry  and  commerce  will  suffer,  but  labor  will  also  be  involved,  and  what 
shall  we  say  of  the  numerous  workmen  reduced  to  idleness  and  destitution  both 
within  and  beyond  the  frontier. 

As  to  the  gravity  of  the  common  interest  presented  by  large  international 
trains  which  insure  a  continuity  of  relations  between  the  nations  of  the  con- 
tinent, it  is  useless  to  dwell  thereon.  They  are  the  work  of  the  economic  solidarity 
of  the  peoples. 

These  two  groups  of  essentially  peaceful  and  sympathetic  interests  seem, 
like  the  wounded,  works  of  art,  etc.,  justified  in  demanding  to  be  spared  except 
in  case  of  absolute  necessity. 

Now,  the  legitimate  interest  of  the  belligerent  does  not  seem  to  be  opposed 
to  the  neutralization  of  rolling  stock  coming  from  States  which  remain  discon- 
nected with  the  war.  For,  if  we  continue  to  refuse  the  latter  any  guaranty  of 
restoration  of  their  material,  the  belligerent  may  retain  what  he  had  thereof  at 
the  time  of  the  declaration  of  war,  but,  from  that  day  on,  the  relations  between 
the  belligerent  State  and  the  neutral  country  will  cease,  and  industry,  commerce, 
and  labor  in  the  two  countries  will  suffer  in  consequence.  In  the  face  of  the 
complaints  of  its  own  nationals  the  belligerent  will  have  to  leave  in  the  industrial 
and  comrnercial  centers  a  large  part  of  its  own  equipment,  which  would  have 
become  available  if  the  neutral  equipment  had  been  able  to  supply  the  insufficiency- 
created  by  the  war. 


544  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

Colonel  Gross  von  Schwarzhoff  thinks  that  he  ought  now  to  explain  briefly 
his  view  of  this  question.  In  his  opinion  it  comes  within  the  chapter  reserved 
for  the  rights  and  duties  of  neutrals,  whereas  the  present  discussion  treats  only  of 
the  respective  position  of  the  belligerents. 

The  question  would  provoke  many  difficulties,  whose  consequence  may  not 
at  once  be  appreciated,  and  it  ought  to  be  referred  to  the  subsequent  conference 
mentioned  before  in  this  subcommission. 

Mr.  Lammasch  proposes  to  add  to  the  enumeration  contained  in  Article  6 
the  word  "  telephones,"  and  he  asks  the  drafting  committee  to  kindly  take  ac- 
count of  his  proposition. 

General  Sir  John  Ardagh  will  support  the  proposition  of  Mr.  Bille  if  the 
latter  will  eliminate  therefrom  the  definition  of  the  territorial  sea  as  three  marine 
miles. 

Mr.  Bille  is  not  willing  to  admit  this  modification.  The  extent  to  which 
the  cables  would  be  protected  would  remain  indefinite  as  far  as  their  submerged 
part  were  concerned.  He  by  no  means  intended  to  raise  the  question  of  the 
limit  of  the  territorial  sea.  By  taking  three  miles  as  the  limit  in  this  provision, 
which  is  entirely  practical  in  its  scope,  no  risk  will  be  run  of  acting  in  contradic- 
tion to  the  views  of  certain  Governments.  The  idea  has  been  entertained  of 
'  extending  this  limit  but  as  far  as  he  knows  no  desire  has  been  expressed  of  fixing 
it  at  less  than  three  miles. 

Mr.  Beldiman  proposes  to  reserve  this  question  also  for  the  drafting  com- 
mittee, which  Mr.  Bille  will  kindly  join. 

General  Sir  John  Ardagh  defines  his  opinion  to  the  effect  that  if  any  limit 
IS  mentioned  and  determined  by  figures  an  encroachment  will  be  made  on  the 
question  of  protecting  submarine  cables.  From  the  standpoint  of  the  labors  of 
this  subcommission  it  is  sufficient  to  deal  only  with  landings. 

The  President,  with  a  view  to  accelerating  the  labors  of  the  subcommission, 
requests  the  delegates  to  kindly  communicate  to  the  drafting  committee  such 
.-amendments  as  they  may  have  to  propose  to  Articles  7  and  8. 

Colonel  Gilinsky  is  of  opinion  that  Mr.  Bille's  amendment  renders  it 
necessary  to  assign  to  the  committee  at  least  one  of  the  naval  technical  delegates. 

Mr.  Renault  thinks  that  the  proposition  of  Mr.  Gilinsky  demonstrates 
that  the  amendment  of  Mr.  Bille  is  outside  of  the  domain  of  the  Brussels 
Declaration.  They  ought  to  have  refrained  from  determining  the  limit  of  the 
territorial  sea.  Too  many  difficulties  would  arise  if  the  subcommission 
'[118]  (which  for  that  matter  does  not  appear  to  him  competent  to  deal  with 
the  subject)  wished  to  fix  a  limit  for  the  special  point  contemplated  by 
the  amendment  of  Mr.  Bille. 

Mr.  Bille  observes  that  it  is  a  question  here  solely  of  classing  landing  cables 
with  land  telegraphs. 

As  these  cables  are  costly  and  difficult  to  lay,  there  are  at  least  the  same 
reasons  for  indemnifying  the  States  owning  them  in  case  of  damage.  He  there- 
fore does  not  believe  that  the  question  here  involved  is  one  that  would  come 
rather  within  the  competence  of  naval  specialists,  the  protection  he  wishes  to 
extend  to  these  cables  being  justified  by  their  position  on  the  territory.  He  does 
not  oppose  having  the  question  referred  to  the  drafting  committee. 

The  President  states  that  this  will  be  done,  it  being  the  duty  of  the  com- 
mittee to  first  decide  on  the  question  of  its  competence. 

The  meeting  adjourns. 


ELEVENTH   MEETING 

JUNE  20,  1899 


Mr.  Martens  presiding. 

The  minutes  of  the  tenth  meeting  are  read  and  adopted. 

The  President  states  that  in  accordance  with  its  instructions  the  drafting 
committee  in  its  meeting  of  June  17  discussed  the  second  paragraph  of  Article 
6,  and  Articles  7  and  8,  with  the  assistance  of  Messrs.  Bille  and  Odier. 

As  set  forth  in  the  report  addressed  to  the  subcommission/  this  committee 
agreed  unanimously  regarding  the  wording  which  it  proposes  for  these  articles, 
as  well  as  for  the  new  provisions.  It  is  now  for  the  subcommission  to  approve 
the  results  attained. 

Paragraph  2  of  Article  6  is  adopted  in  accordance  with  the  text  proposed, 
as  follows: 

Railway  plant,  land  telegraphs,  including  landing  cables,  telephones, 
steamers  and  other  ships,  apart  from  cases  governed  by  maritime  law,  as  well 
as  depots  of  arms  and  generally  all  kinds  of  munitions  of  war,  although  be- 
longing to  companies  or  to  private  persons,  are  likewise  material  which  may 
serve  for  military  operations,  and  which  cannot  be  left  by  the  army  of  oc- 
cupation at  the  disposal  of  the  enemy.  Railway  plant,  land  telegraphs,  in- 
cluding landing  cables  and  telephones,  as  well  as  steamers  and  other  ships 
above-mentioned  shall  be  restored  and  compensation  fixed  when  peace  is 
made. 

The  new  provision  concerning  the  railway  plant  of  neutrals,  proposed  by 
his  Excellency  Mr.  Beernaert  to  the  subcommission,  and  the  wording  of  which 
was  modified  by  the  drafting  committee,  is  now  read : 

The  plant  of  railways  coming  from  neutral  States,  whether  the  property 
of  those  States  or  companies  or  of  private  persons,  shall  be  sent  back  to  them 
as  soon  as  possible. 

Chevalier  Descamps,  in  making  a  reservation  in  regard  to  the  form  of  the 
commentary  given  to  this  proposition  by  the  drafting  committee,  wishes  to  re- 
mark that  it  is  not  a  question  in  this  article  of  the  relations  between  belligerents 
themselves,  but  of  the  relations  between  the  belligerents  and  the  States  which  re- 
main aloof  from  the  war.  In  his  opinion  the  provision  in  its  vague  form  would 
tend  rather  to  cause  than  to  avoid  difficulties.  The  necessities  of  war  can  never 
from  any  standpoint  constitute  the  standard  for  the  relations  between  belligerents 
and  neutrals.  It  would  be  neither  in  accordance  with  justice  nor  with  honor 
to  attempt  to  strike  an  enemy  through  the  heart  of  a  friend. 

^  See  annex  C. 

545 


546  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

He  therefore  makes  reservations  in  regard  to  the  scope  which  the  com- 
[119]   mentary  of  Mr.  Rolin  seems  to  assign  to  this  article.     The  belligerents 
cannot  use  the  resources  of  neutrals  for  the  purposes  of  the  war. 
The  President  says  that  the  considerations  of  Mr.  Descamps  will  be  in- 
serted in  their  proper  place  in  the  minutes. 

The  article  is  unanimously  adopted  in  accordance  with  the  proposition  of 
the  drafting  committee. 

Article  7  is  read  and  unanimously  adopted  with  the  text  of  1874,  as  pro- 
posed by  the  drafting  committee : 

The  occupying  State  shall  be  regarded  only  as  administrator  and  usufructuary  of  public 
buildings,  real  estate,  forests,  and  agricultural  estates  belonging  to  the  hostile  State,  and 
situated  in  the  occupied  country.  It  must  safeguard  the  capital  of  these  properties,  and 
administer  them  in  accordance  with  the  rules  of  usufruct. 

Article  8  is  read : 

The  property  of  municipalities,  that  of  institutions  dedicated  to  religion,  charity  and 
education,  the  arts  and  sciences  even  when  State  property,  shall  be  treated  as  private  property. 

All  seizure  or  destruction  of,  or  willful  damage  to,  institutions  of  this  character,  his- 
toric monuments,  works  of  art  and  science  should  be  made  the  subject  of  legal  proceedings 
by  the  competent  authorities. 

In  regard  to  the  first  paragraph,  the  President  says  that  at  the  request  of 
the  delegate  from  Persia  the  committee  expressed  the  conviction  that  there  is 
no  distinction  to  be  made  on  this  subject  between  the  different  forms  of  religion; 
the  expression  "  institutions  dedicated  to  religion "  therefore  likewise  applies 
to  mosques. 

The  first  paragraph  is  unanimously  adopted  with  the  wording  of  1874  in 
accordance  with  the  conclusion  of  the  committee. 

For  the  second  paragraph  the  wording  proposed  by  the  drafting  committee 
is  unanimously  adopted  as  follows : 

All  seizure  or  destruction  of,  or  willful  damage  to,  institutions  of  this 
character,  historic  monuments,  works  of  art  and  science,  is  forbidden,  and 
should  be  made  the  subject  of  legal  proceedings. 

The  examination  of  the  second  chapter  of  the  draft  Declaration  of  Brussels 
is  now  taken  up :  "  Who  should  be  recognized  as  belligerents ;  combatants  and 
non-combatants."  Two  propositions  were  laid  on  the  table  at  the  end  of  the 
last  meeting  and  distributed  to  the  members.^ 

Articles  9  and  10  are  read: 

Article  9 

The  laws,  rights,  and  duties  of  war  apply  not  only  to  armies,  but  also  to  militia  and 
volunteer  corps  fulfilling  the  following  conditions : 

1.  That  they  be  commanded  by  a  person  responsible  for  his  subordinates ; 

2.  That  they  have  a  fixed  distinctive  emblem  recognizable  at  a  distance ; 

3.  That  they  carry  arms  openly;  and 

4.  That  they  conduct  their  operations  in  accordance  with  the  laws  and  customs  of  war. 
In  countries  where  militia  constitute  the  army,  or  form  part  of  it,  they  are  included 

under  the  denomination  "  army." 

^  See  the  texts  hereinafter. 


ELEVENTH  MEETING,  JUNE  20,  1899  547 

Articxe  10 

The  population  of  a  territory  which  has  not  been  occupied,  who,  on  the  approach  of 
the  enemy,  spontaneously  take  up  arms  to  resist  the  invading  troops  without  having  had  time 
to  organize  themselves  in  accordance  with  Article  9,  shall  be  regarded  as  belligerents  if  they 
respect  the  laws  and  customs  of  war. 

Before  opening  the  discussion  the  President  wishes  to  make  some  observa- 
tions. 

These  articles  are  of  great  importance.  The  dominating  idea  of  the  Brussels 
Conference  in  this  regard  was  that  it  devolved  upon  all  the  Governments  as  a 
sacred  duty  to  do  all  in  their  power  in  an  endeavor  to  diminish  the  evils  and 
calamities  of  war. 

It  is  in  view  of  this  sublime  purpose  that  the  defensive  forces  should  be 
organized  and  disciplined,  above  all  in  our  time. 

However,  it  is  not  intended  to  deny  the  right  of  populations  to  defend  them- 
selves.    This  right  is  sacred.     But,  no  less  sacred  is  the  duty  of  Govern- 
[120]   ments  not  to  sacrifice  useless  victims  in  the  interest  of  the  war.     It  was 
in  order  to  fulfill  this  duty  that  the  Russian  Government  in  1874  proposed 
to  all  the  States  that  they  adopt  conditions  easy  of  fulfillment  in  order  to  enable 
the  populations  to  take  part  in  the  operations  of  war. 

The  Brussels  Conference,  therefore,  by  no  means  intended  to  abolish  the 
right  of  defense,  or  to  create  a  code  which  would  aboHsh  this  right.  It  was, 
on  the  contrary,  imbued  with  the  idea  that  heroes  are  not  created  by  codes,  but 
that  the  only  code  that  heroes  have  is  their  self-abnegation,  their  will  and  their 
patriotism. 

The  Conference  understood  that  its  duty  was  not  to  try  to  formulate  a 
code  for  cases  which  cannot  be  foreseen  and  codified,  such  as  acts  of  heroism 
on  the  part  of  populations  rising  against  the  enemy. 

It  simply  wished  to  afford  the  populations  more  guaranties  than  had  ex- 
isted up  to  that  time. 

Formerly,  the  conditions  imposed  upon  populations  at  the  will  of  the  bel- 
ligerents were  much  more  difficult  to  fulfill  than  those  laid  down  in  Articles  9 
and  10. 

This  must  not  be  lost  sight  of,  and  it  must  be  remembered  that  it  is  not 
the  purpose  of  these  provisions  to  codify  all  cases  that  might  arise.  They  have 
left  the  doors  open  to  the  heroic  sacrifices  which  nations  might  be  ready  to  make 
in  their  defense ;  a  heroic  nation  is,  like  heroes,  above  codes,  rules,  and  facts. 

It  is  not  our  province,  adds  Mr.  Martens,  to  set  limits  to  patriotism ;  our 
mission  is  simply  to  establish  by  common  agreement  among  the  States  the  rights 
of  the  populations  and  the  conditions  to  be  fulfilled  by  those  who  desire  legally 
to  fight  for  their  country. 

And  it  is  also  along  this  order  of  ideas  that  Mr.  Martens  desires  to  make 
the  following  declaration,  which  he  wishes  to  have  inserted  in  the  minutes  and 
which,  he  hopes,  will  succeed  in  removing  all  misunderstanding  which  may  still 
exist  in  regard  to  the  purport  of  Articles  9  and  10. 

The  President  reads  his  declaration,  worded  as  follows : 

The  Conference  is  unanimous  in  thinking  that  it  is  extremely  desirable  that 
the  usages  of  war  should  be  defined  and  regulated.  In  this  spirit  it  has  adopted 
a  great  number  of  provisions  which  have  for  their  object  the  determination  of 


548  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

the  rights  and  of  the  duties  of  belligerents  and  populations  and  for  their  end 
a  softening  of  the  evils  of  war  so  far  as  military  necessities  permit.  It  has  not, 
however,  been  possible  to  agree  forthwith  on  provisions  embracing  all  the  cases 
which  occur  in  practice. 

On  the  other  hand,  it  could  not  be  intended  by  the  Conference  that  the 
cases  not  provided  for  should,  for  want  of  a  written  provision,  be  left  to  the 
arbitrary  judgment  of  the  military  commanders. 

Until  a  perfectly  complete  code  of  the  laws  of  war  is  issued,  the  Conference 
thinks  it  right  to  declare  that  in  cases  not  included  in  the  present  arrangement, 
populations  and  belligerents  remain  under  the  protection  and  empire  of  the 
principles  of  international  law,  as  they  result  from  the  usages  established  be- 
tween civilized  nations,  from  the  laws  of  humanity,  and  the  requirements  of  the 
public  conscience. 

It  is  in  this  sense  especially  that  Articles  9  and  10  adopted  by  the  Conference 
must  be  understood. 

His  Excellency  Mr.  Beernaert  says  that  he  has  had  the  honor  to  express 
his  opinion  in  regard  to  Articles  9  and  10,  but  that  he  has  also  more  than  once 
declared  that  he  was  fully  aware  of  the  great  importance  of  having  the  Confer- 
ence accomplish  a  common  work. 

Although  Articles  9  and  10  do  not  come  up  to  what  he  would  have  wished, 
he  will  vote  for  them  and  all  the  more  readily  by  reason  of  the  declaration  just 
made  by  the  President.  However,  as  this  declaration  is  very  important  and 
appears  to  express  the  unanimous  sentiment  of  the  assembly,  it  ought  to  be  in- 
serted both  in  the  minutes  of  the  meeting  and  in  the  final  protocol,  or  else  in 
the  general  act  which  is  to  crown  the  work  of  the  Conference. 

He  asks,  however,  to  recall  the  terms  in  which  the  real  meaning  of  Articles 
9  and  10  was  fixed  at  Brussels  in  1874. 

In  the  original  draft  it  had  been  sought  to  regulate  more  precisely  the  duties 
of  invaded  populations  toward  the  enemy.  A  special  paragraph  (46)  contem- 
plated the  case  of  the  uprising  of  the  population  in  an  occupied  country,  and 
subjected  to  the  rigors  of  justice  those  who  took  part  therein.  Paragraph  47 
repressed  isolated  acts  of  hostility.  But  no  one  thought  of  disregarding  the 
fact  that  the  right  of  a  country  to  defend  itself  is  absolute,  and  that  it 
[121]  is  not  only  a  right  but  a  duty,  and  an  imperious  one  at  that.  Baron 
JoMiNi  said  this  on  July  31  and  August  17;  ^  General  Leer  repeated  it  on 
August  26 ;  ^  while  Baron  Baude,  delegate  from  France,  asked  that  the  right 
be  stated  in  formal  language.^ 

However,  such  a  wording  oflfered  great  difficulties ;  over  against  rights  were 
set  correlative  duties,  and  then  there  arose  the  individual  cases  which  would  have 
to  be  regulated.  Such  difficulties  were  encountered  that  in  the  end  paragraphs 
46  and  47  were  abolished,  it  being  stated  that  the  Conference  left  unsettled  the 
questions  relating  to  uprisings  in  occupied  territory  and  to  individual  acts  of  war. 

His  Excellency  Mr.  Beernaert  recalls  the  terms  in  which  this  was  stated 
by  Baron  Lambermont  on  August  22  *  and  by  Baron  Blanc  on  August  26.^ 

Therefore,  the  only  point  settled  is  that  armies,  militia,  organized  bodies, 

1  See  Actcs  de  la  Conference  de  Bruxelles  1874,  pp.  35.  147. 

2  Ibid.,  p.  245. 
^Ibid.,  p.  161. 
*  Ibid.,  p.  220. 
6  Ibid.,  p.  224. 


ELEVENTH  MEETING,  JUNE  20,  1899  549 

and  also  the  population  which,  even  though  unorganized,  spontaneously  takes  up 
arms  in  unoccupied  territory,  must  be  regarded  as  belligerents.  All  other  cases 
and  situations  are  regulated  by  the  law  of  nations  according  to  the  terms  of 
the  declaration  just  read  by  the  President. 

But  these  are  rules,  and  none  has  outlined  them  better  than  another  Martens, 
who  has  also  been  an  honor  to  his  country.  To-morrow  as  to-day  the  rights  of 
the  victor,  far  from  being  unlimited,  will  be  restricted  by  the  laws  of  the  universal 
conscience  and  no  general  would  dare  violate  them  for  he  would  thereby  place 
himself  under  the  ban  of  civilized  nations. 

Colonel  Kiinzli  asks  that  the  whole  chapter  and  the  article  proposed  by  Sir 
John  Ardagh  ^  be  taken  up  for  discussion  together. 

The  President  says  that  it  will  be  necessary  to  proceed  to  the  deliberations 
article  by  article,  but  his  statement  and  his  declaration  relate  to  Articles  9  and 
10  as  a  whole,  they  being  closely  connected. 

General  den  Beer  Poortugael,  while  fully  endorsing  the  considerations  set 
forth  by  the  President  and  his  Excellency  Mr.  Beernaert,  wishes  to  add  a  few 
words. 

He  is  of  opinion  that  the  public  errs  in  supposing  that  it  is  the  small  States 
that  benefit  least  by  the  provisions  contained  in  Articles  9  and  10.  There  is  no 
antagonism  here  between  the  interests  of  the  great  and  of  the  small  States. 
The  latter  will  benefit  specially  by  these  provisions  for  as  a  general  rule  they  will 
have  to  wage  war  on  their  own  territory  and  because  the  numerical  inferiority  of 
their  military  forces  renders  the  cooperation  of  their  population  still  more 
indispensable  to  them  than  it  is  to  the  large  States.  These,  on  the  other  hand,  will 
have  to  wage  war  more  often  than  the  small  States ;  and  who  guarantees  to 
them  that  their  populations  will  not  likewise  be  obliged  some  day  to  defend 
themselves  against  an  invading  enemy? 

But  from  a  military  standpoint  also  it  must  be  recognized  that  it  is  to  the 
benefit  of  the  populations  to  impose  on  them  the  conditions  contained  in  Articles 
9  and  10,  which  they  must  satisfy  if  they  wish  to  take  up  arms.  For  it  is  an 
undeniable  fact  that  to  lead  undisciplined  and  unorganized  troops  into  the  fire 
is  to  lead  them  to  butchery. 

And  finally,  these  two  articles,  laid  down  in  a  conventional  act,  would  have 
a  still  further  advantage :  that  of  convincing  small  States  of  the  necessity  of 
organizing  their  national  armed  forces  in  the  most  efficient  manner  in  advance 
and  in  time  of  peace. 

The  delegate  from  the  Netherlands  is  therefore  of  opinion  that  it  is  to  the 
interest  of  all  the  peoples  to  preserve  the  two  articles. 

Article  9  is  unanimously  adopted,  as  is  also  Article  10,  the  delegate  from 
Switzerland  having  stated  that  his  vote  will  depend  on  the  action  taken  on  the 
article  proposed  by  Sir  John  Ardagh. 

Article  11  is  taken  up  and  unanimously  adopted,  the  President  having  de- 
clared that  there  will  be  laid  before  the  drafting  committee  a  proposition  from 
his  Excellency  Mr.  Beernaert  tending  to  connect  this  provision  to  those  relating 
to  prisoners  of  war : 

The  armed  forces  of  the  belligerent  parties  may  consist  of  combatants 
and  non-combatants.     In  case  of  capture  by  the  enemy,  both  shall  enjoy 
the  rights  of  prisoners  of  war. 
1  See  the  text  on  the  following  page. 


550  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

[122]   The  President  recalls  the  fact  that  there  remain  to  be  discussed  the  addi- 
tional articles  proposed  by  General  Sir  John  Ardagh  and  Article  E  (new) 
of  the  Swiss  amendments. 
He  reads: 

1.  From  the  proposition  of  Sir  John  Ardagh  : 

Nothing  in  this  chapter  shall  be  considered  as  tending  to  lessen  or  abol- 
ish the  right  belonging  to  the  population  of  an  invaded  country  to  fulfill  its 
duty  of  offering  by  all  lawful  means,  the  most  energetic  patriotic  resistance 
against  the  invaders, 

2.  From  the  article  proposed  by  the  Swiss  delegation,  worded  thus: 

No  acts  of  retaliation  shall  be  exercised  against  the  population  of  the 
occupied  territory  for  having  openly  taken  up  arms  against  the  invader. 

The  President  asks  the  delegate  from  Great  Britain  whether  the  insertion 
in  the  minutes  of  his  own  declaration  and  that  of  his  Excellency  Mr.  Beernaert 
would  not  satisfy  him. 

General  Sir  John  Ardagh  prefers  to  have  Article  11  followed  by  an  article 
worded  as  he  has  proposed.  If,  however,  the  subcommission  is  against  his 
wish  he  will  not  insist,  but  he  will  ask  that  the  article  proposed  by  him  be  sub- 
mitted to  a  vote. 

Colonel  Kiinzli  delivers  the  following  address  : 

The  Swiss  delegation  had  prepared  amendments  to  Articles  9  and  10,  but 
it  will  not  deposit  them  and  will  join  in  the  proposition  of  General  Ardagh. 
The  declaration  made  by  the  President  is  certainly  of  great  value  but  it  does 
not  afford  us  the  necessary  guaranties,  for  it  will  after  all  be  the  text  of  the 
convention  that  will  decide. 

I  realize  that  war  has  its  needs,  its  exigencies,  and  even  its  inevitable  cruel- 
ties. I  am  not  one  of  those  who  believe  that  the  course  of  future  wars  can  be 
regulated  on  paper  to  its  utmost  details.  History  teaches  us  that  circumstances 
are  often  stronger  than  men  and  stronger  even  than  the  best  will  of  generals. 
War  will  remain  war,  with  all  its  miseries,  but  will  also  bring  out  the  highest 
qualities  of  man.  Since  we  cannot  prevent  the  miseries  of  war,  let  us  at  least 
try  to  diminish  them.  On  this  subject  I  will  take  the  liberty  of  expressing  a 
few  reflections. 

We  are  approaching  the  end  of  a  century.  It  will  be  characterized  in  the 
history  of  the  world  as  a  century  of  great  wars  and  of  great  political  events,  but 
it  will  also  have  the  credit  and  glory  of  having  made  progress  in  science  such 
as  the  world  never  saw  arise  before. 

Our  century  has  seen  human  blood  flow  in  torrents,  but  on  the  other  hand 
it  has  dressed  many  physical  and  moral  wounds  by  means  of  the  progress  of 
science,  and  above  all  it  has  improved  the  economic  conditions  of  life.  But 
progress  and  science  have  had  still  another  effect.  Assisted  by  easy  communi- 
cations, which  multiply  the  relations  among  peoples,  they  have  created  a  public 
opinion  which  is  won  over  to  peaceful  and  humanitarian  ideas  and  which  propa- 
gates them  far  and  wide. 

This  movement,  modest  in  its  beginning,  comparable  to  a  small  brook,  ac- 
quired the  force  of  a  torrent  as  soon  as  it  met  the  powerful  support  of  an  august 
sovereign  who,  with  his  strong  hand,  planted  on  earth,  as  an  advance  sign  of 


ELEVENTH  MEETING,  JUNE  20,  1899  551 

the  twentieth  century,  the  standard  of  peace  and  humanitarian  ideas.  Do  not 
pass  lightly  in  the  order  of  the  day  on  this  movement.  As  it  is  not  within 
your  power  to  close  up  the  temple  of  Janus  forever,  at  least  do  not  expose  your- 
selves to  the  reproach  of  having  maintained  in  our  enlightened  days  usages  and 
customs  of  war  which  no  longer  belong  to  our  time.  We  are  not  working  here 
for  the  advantage  of  some  and  the  injury  of  others.  None  of  us  knows  in 
advance  under  what  circumstances  this  convention  may  become  applicable  to  his 
own  country.  Let  us  therefore  perform  a  work  which  will  be  acceptable  to  all. 
Good  and  bad  times  alternate  here  on  earth.  All  the  nations  which  are  repre- 
sented here  by  so  many  distinguished  and  celebrated  men,  have  had  days  of 
good  and  of  bad  fortune  during  our  century. 

Historians  and  thinkers  have  often  asked  the  question  whether  nations 
were  greater  at  the  pinnacle  of  success  than  in  the  days  of  adversity,  when 
higher  morality  became  evident  and  the  whole  people  rose  in  a  mass  to  defend 
its  soil. 

And  if  you  will  allow  me  to  cite  an  example  to  you,  I  will  ask  you  whether 
the  most  glorious  epoch  of  the  country  in  which  we  are  enjoying  such  generous 
hospitality  was  not  the  one  in  which  it  had  to  sustain  a  long  and  arduous  struggle 
against  a  powerful  invader,  when  the  whole  Dutch  people  fought  with  a  valiance 
and  perseverance  without  parallel  for  its  independence,  freedom,  and  convic- 
tions? That  was  the  great  epoch  in  which  arose  William  of  Orange-Nassau 
and  other  great  men. 

On  taking  into  account  the  lessons  of  history,  we  arrive  at  the  conviction 
[123]  that  we  must  at  least  take  a  step  toward  improving  the  usages  of  war. 
The  Brussels  articles  introduce  nothing  new ;  they  do  nothing  but  preserve, 
confirm,  and  codify  the  customs  of  war,  as  they  were  formed  in  the  last  wars. 

I  ask  you  for  but  one  single  innovation :  do  not  punish  love  of  country ;  do 
not  adopt  rigorous  measures  against  peoples  who  rise  in  a  mass  to  defend  their 
soil. 

At  the  beginning  of  this  century  we  had  in  our  country  several  levees  en  masse 
of  the  people  in  certain  mountainous  regions,  and  a  similar  action  of  much  more 
importance  occurred  in  a  mountainous  country  which  is  a  neighbour  of  ours. 
They  fought  in  open  combat ;  the  stragglers  were  not  struck  down  and  the  sick  and 
wounded  were  not  killed.  Not  only  able-bodied  men  but  also  old  men,  children, 
and  women  took  part  in  the  battles. 

You  will  say  that  this  was  an  excess  of  patriotism.  Perhaps,  but  it  was  an 
excess  which  delights  the  heart  and  which  may  occur  again.  You  will  under- 
stand that  we  cannot  subscribe  to  a  convention  which  would  subject  part  of  the 
population  to  martial  law  and  courts-martial.  We  are  of  opinion  that  love  of 
country  is  a  virtue  which  should  be  cultivated  and  not  suppressed. 

I  recommend  to  you  the  adoption  of  the  proposition  of  General  Ardagh. 
The  President  answers  that  it  has  never  been  a  question  of  setting  bounds 
to  the  patriotic  virtues  of  peoples. 

He  repeats  again  that  neither  the  Conference  of  Brussels  of  1874  nor  that 
of  The  Hague,  in  codifying  the  laws  and  customs  of  war,  could  accomplish  an 
impossible  task,  namely:  to  codify  the  heroic  acts  of  individuals  or  populations. 
Our  task  is  much  simpler:  we  wish  to  save  the  life  and  property  of  the  weak,  the 
unarmed,  and  the  inoffensive,  but  we  by  no  means  wish  either  to  prescribe  laws 
for  heroes  or  to  curb  the  impulses  of  patriots. 


552  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

Colonel  Gross  von  Schwarzhoff  declares  that  he  cannot  indorse  the  amend- 
ment of  General  Sir  John  Ardagh. 

At  first  sight  the  proposition  appears  harmless,  almost  anodyne,  as  it  speaks 
only  of  lawful  means.  But  what  are  lawful  means?  According  to  him,  they 
are  only  those  which  conform  to  the  conditions  prescribed  in  Articles  9  and  10. 

But  if  the  proposition  did  not  contemplate  anything  else  it  would  be  abso- 
lutely superfluous.  However,  the  insistence  with  which  this  additional  article  is 
defended,  and  especially  the  eloquent  words  which  Colonel  Kunzli  has  devoted 
to  it,  have  demonstrated  in  the  opinion  of  Mr.  Gross  von  Schwarzhoff  that 
som.ething  else  is  seen  therein  and  that  it  is  desired  to  amplify  the  sense  of  Articles 
9  and  10. 

This  address  having  opened  up  a  discussion  on  the  very  substance  of  the  two 
articles,  the  delegate  from  Germany  wishes  to  specify  his  views  of  the  matter. 

The  subcommission  has  almost  reached  the  end  of  its  first  task.  The  many 
decisions  which  it  has  adopted  have  been  drawn  up  in  a  spirit  of  humanity  and 
for  the  purpose  of  mitigating  the  evils  of  invasion  for  the  inhabitants.  A  tacit 
condition  exists  common  to  all  the  provisions:  that  is  that  the  population  shall 
remain  peaceful ;  if  this  condition  is  not  fulfilled,  most  of  the  guaranties  pro- 
vided in  behalf  of  the  inhabitants  lose  their  reason  for  existence.  Does  this 
mean  that  it  is  desired  to  limit  patriotism  or  to  prohibit  brave  people  from  taking 
part  in  the  defense  of  their  native  soil? 

By  no  means.  The  delegate  from  Germany  would  be  the  last  to  disregard 
these  sacred  rights.  But  nothing  prevents  patriots  from  entering  the  ranks  of 
the  army,  or,  if  the  organization  prepared  in  time  of  peace  is  too  restricted, 
from  organizing  among  themselves,  independently  of  the  army  proper.  Article  9 
recognizes  their  rights  as  belligerents  if  they  fulfill  certain  conditions,  which  surely 
have  nothing  excessive  about  them.  Is  it  then  so  difficult  to  find  a  man  who 
will  lead  the  movement,  a  mayor,  an  official,  a  former  soldier?  Some  kind  of  a 
command  will  always  be  established.  Crowds  can  accomplish  nothing  unless 
commanded.  Is  it  so  difficult,  moreover,  to  hoist  some  distinctive  sign  ?  A  mere 
arm  badge  will  suffice.  Is  it  too  much  to  demand  that  they  bear  arms  openly  and 
that  they  observe  the  laws  of  war,  a  thing  which  they  expect  and  of  which  they 
are  assured  on  the  part  of  their  adversaries?  Article  9  ought  therefore  to 
amply  suffice,  for  it  does  not  trammel  patriotism  in  any  manner. 

However,  a  step  further  was  taken  in  voting  for  Article  10  which  accords 
the  rights  of  belligerents  to  the  population  of  an  unoccupied  territory  on  the  sole 
condition  that  it  respect  the  laws  of  war.  It  would  be  preferable  from  every 
standpoint  to  require  here  also  a  distinctive  sign  and  the  open  bearing  of  arms. 
Otherwise  the  regular  troops  will  find  themselves  in  an  unfavorable  situation, 
being  unable  to  tell  whether  they  have  before  them  peaceful  peasants 
[124]  or  enemies  ready  for  combat;  the  long  range  of  modern  weapons  renders 
this  point  still  more  important. 

The  German  delegate  frankly  admits  that  he  has  grave  objections  to  make  to 
this  article ;  but,  in  a  spirit  of  conciliation  and  in  order  not  to  raise  insur- 
mountable difficulties,  he  thought  he  might  remain  silent  and  refrained  from 
proposing  its  abolition. 

However,  now  that  it  is  desired  to  broaden  the  principles  involved  therein, 
he  finds  himself  obliged  to  say  that  the  concessions  should  stop  here. 

And  since  we  are  speaking  of  humanity,  it  is  time  to  remember  that  soldiers 


ELEVENTH  MEETING,  JUNE  20,  1899  553 

also  are  men,  and  have  a  right  to  be  treated  with  humanity.  Soldiers  who,  ex- 
hausted by  fatigue  after  a  long  march  or  a  battle,  come  to  rest  in  a  village  have 
a  right  to  be  sure  that  the  peaceful  inhabitants  shall  not  change  suddenly  into 
furious  enemies. 

However,  leaving  aside  these  considerations,  let  us  regard  the  matter  from 
a  practical  standpoint  and  endeavor  to  come  to  an  understanding.  To  this  end 
Mr.  Gross  von  Schwarzhoff  reads  a  passage  from  the  proceedings  of  the 
Brussels  Conference  of  1874  in  which  the  federal  Colonel  Hammer  recognizes 
that  the  interests  of  large  armies  imperiously  demand  security  for  their  communi- 
cations and  for  their  radius  of  occupation,  and  that  a  conciliation  of  these  in- 
terests and  those  of  the  invaded  peoples  is  impossible. 

The  delegate  from  Germany  asks  nothing  more  than  the  eminent  compatriot 
of  the  Swiss  delegates  asked  in  1874,  namely,  that  those  questions  in  regard 
to  which  an  understanding  is  impossible  be  passed  over  in  silence.^ 

Colonel  Gilinsky  says  that  he  endorses  the  opinion  expressed  by  Colonel 
Gross  von  Schwarzhoff,  that  the  necessities  of  war  must  be  reckoned  with. 

The  inhabitants  who  fight  openly  in  an  unoccupied  territory  are  recognized 
as  belligerents.  Article  10  affords  full  power  to  the  whole  nation  to  fight,  under 
the  conditions  prescribed,  against  the  invader  of  its  country.  However,  this 
right  cannot  be  granted  to  the  inhabitants  of  an  occupied  territory  who  attack 
the  lines  of  communication,  for  without  lines  of  communication  an  army  can- 
not subsist. 

Mr.  Rahusen  indorses  the  view  of  the  German  delegate.  While  doing 
homage  to  the  sentiment  which  inspired  the  proposition  of  Sir  John  Ardagh, 
he  does  not  think  that  his  amendment  can  be  inserted  as  an  article  in  the  con- 
vention. 

No  one  will  deny  the  right  of  a  people  to  rise  against  an  invading  army, 
l)ut  the  direct  consequence  is  that  it  becomes  a  belligerent.  It  is  optional  with 
the  population  as  to  whether  or  not  it  conforms  to  the  conditions  which  consti- 
tute the  status  of  a  belligerent,  but  it  will  have  to  bear  the  consequences  of  not 
doing  so. 

The  President  states  that  Article  E  of  the  Swiss  delegation  is  withdrawn, 
Colonel  KuNZLi  having  recommended  the  adoption  of  the  proposition  of  Sir 
John  Ardagh. 

General  Sir  John  Ardagh  insists  that  his  proposition  be  inserted  as  a  separ- 
ate article  and  that  it  be  submitted  to  a  vote. 

Colonel  Kiinzli  answers  the  remarks  of  Colonel  Gross  von  Schwarzhoff, 
The  latter  cited  Colonel  Hammer,  but  subsequently  at  the  Brussels  Conference 
the  President  of  the  Swiss  Confederation,  Mr.  Welti,  gave  his  opinion  on  the 
subject  and  raised  grave  objections  to  Articles  9  and  10. 

Mr.  Leon  Bourgeois  desires  to  define  the  situation.  He  finds  that  the  sub- 
commission  is  in  agreement  with  Sir  John  Ardagh  as  to  the  main  issue,  while 
Messrs.  Kunzli  and  Gross  von  Schwarzhoff  have  one  and  the  same  idea. 
Nothing  should  lessen  the  guaranties  which  the  law  of  nations  gives  to  popula- 
tions when  they  resist  the  invader. 

How  may  the  discussion  then  be  summed  up? 

It  is  a  question  of  determining  whether  it  is  better  to  insert  this  idea  in 
Ihe  text  in  the  form  of  an  article,  or  be  content  with  the  declaration  of  the 

1  See  Acies  de  la  Conference  de  Bruxelles  1874,  P-  163. 


554  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

President,  which  would  be  inserted  in  the  final  protocol.  This  latter  mode 
of  procedure  would  afford  him  adequate  satisfaction.  But  in  case  it  should  not 
be  adopted,  the  vote  on  the  proposition  of  Sir  John  Ardagh  would  appear  to 
him  necessary.  However,  the  wording  of  the  article,  as  well  as  the  place  to  be 
assigned  to  it,  would  give  rise  to  many  difficulties. 

It  seems  expedient  to  him  to  have  the  commission  declare  that  it  proposes 
to  insert  the  declaration  of  the  President  in  the  final  protocol. 

His  Excellency  Mr.  Beernaert  states  with  satisfaction  that  the  delegate 

[125]   from  France  supports  his  view.     He  had  as  a  matter  of  fact  asked  that 

the  declaration  of  Mr.  Martens  be  entered  not  only  in  the  minutes  of  the 

meeting  but  also  either  in  the  final  protocol  or  in  the  international  act  which  is 

to  crown  the  work  of  the  Conference. 

The  President  says  it  is  understood  that  his  declaration  will  remain  as 
an  oiHcial  act  of  the  Conference. 

Jonkheer  van  Karnebeek  declares  that  he  will  not  be  satisfied  with  the 
declaration  of  Mr.  Martens  unless  the  commission  expressly  declares  itself  in 
favor  of  adopting  it. 

Mr.  Beldiman  wishes  to  add  that  if  they  continue  to  insist  that  the  proposi- 
tion of  Sir  John  Ardagh  be  inserted  as  an  article,  the  whole  work  of  the  sub- 
commission  will  be  imperiled.  This  article  does  not  appear  to  him  of  sufficient 
importance  to  risk  causing  the  work  to  fail. 

The  President  consults  the  subcommission  as  to  the  action  which  should 
be  taken  on  his  declaration.  It  is  the  same  in  meaning  as  the  proposition  of  Sir 
John  Ardagh,  but  with  the  difference  that  it  implies  the  impossibility  of  pro- 
viding for  all  cases. 

The  declaration  of  the  President  is  adopted  as  an  oflficial  act  of  the  sub- 
commission,  and  it  will  figure  as  such  in  the  records  of  the  Conference. 

On  an  observation  by  Mr.  Miyatovitch,  the  President  says  that  the  adop- 
tion of  his  declaration  will  not  affect  the  decision  to  be  reached  in  regard  to  the 
proposition  of  Sir  John  Ardagh. 

His  Excellency  Mr.  Beernaert  says  that  the  proposition  of  the  British 
delegate  meets  with  general  approval,  and  especially  his  own,  but  as  it  is  agreed 
that  the  declaration  which  has  just  been  officially  and  unanimously  admitted  has 
the  same  sense,  it  seems  to  him  that  Sir  John  Ardagh  might  give  it  up. 

Mr.  Bille  remarks  that  it  will  be  a  mistake  to  vote  on  the  proposition  of  Sir 
John  Ardagh,  for  as  the  subcommission  has  really  accepted  the  proposition 
of  the  President  as  sufficient  to  confirm  its  opinion  on  the  subject,  it  does  not 
need  to  pass  a  second  time  on  the  same  idea  presented  in  the  form  of  the  Ardagh 
amendment. 

Colonel  Kiinzli  expresses  a  positive  wish  that  the  commission  take  a  vote 
on  the  amendment  of  General  Ardagh. 

Baron  Bildt  explains  why  the  Swedish  and  Norwegian  delegation  will  re- 
frain from  voting. 

It  approves  the  sense  of  the  article  but  deems  it  inopportune  to  insert  it. 

General  den  Beer  Pcortugael  indorses  this  view. 

Mr.  Beldiman  declares  that  in  voting  against  the  insertion  of  the  article, 
it  is  understood  that  the  Roumanian  delegation  does  not  disapprove  the  substance 
thereof.  It  is  afraid  that  by  insisting  too  much  on  a  question  of  form  the  agree- 
ment already  established  may  be  jeopardized. 


ELEVENTH  MEETING,  JUNE  20,  1899  555 

His  Excellency  Count  Nigra  requests  the  President  to  ask  Sir  John 
Ardagh  whether  the  latter  would  not  be  satisfied  to  have  his  article  appear  in 
the  final  protocol  beside  and  as  a  confirmation  of  the  declaration  of  the  President. 

The  President  asks  the  English  delegate  if  he  will  accept  the  proposition 
of  his  Excellency  Count  Nigra  or  if  he  insists  on  the  adoption  of  his  article. 

General  Sir  John  Ardagh,  after  having  ascertained  that  only  the  Swiss  dele- 
gate and  himself  would  vote  to  the  latter  eflfect,  thinks  it  his  duty  to  withdraw 
his  article  out  of  a  spirit  of  conciliation,  inasmuch  as  the  principle  involved 
has  met  unanimous  approval. 

Colonel  Gross  von  Schwarzhoff  thinks  he  ought  to  repeat  that  it  is  by  no 
means,  in  his  opinion,  a  question  merely  of  form,  but  a  question  of  principle. 
The  insistence  placed  upon  the  insertion  of  the  proposition  of  Sir  John  Ardagh 
in  the  text  itself  or  in  the  protocol  proves  as  a  matter  of  fact  that  there  is  some 
hidden  purpose  in  view  and  that  it  is  desired  to  enlarge  the  facilities  of  defense 
given  to  the  inhabitants  by  Articles  9  and  10. 

The  President  concludes  that  Sir  John  Ardagh's  article  will  be  inserted 
in  the  record,  as  well  as  all  observations  and  restrictions  which  have  been  made 
on  this  subject. 

This  suggestion  is  unanimously  approved  by  the  subcommission. 

Captain  Crozier  calls  the  attention  of  the  assembly  to  a  discrepancy  exist- 
ing between  Article  55  as  voted  for  by  the  subcommission  and  Article  10  adopted 
by  the  first  subcommission. 

He  would  like  to  know  the  opinion  of  his  colleagues  regarding  the  inter- 
pretation of  Article  55. 

His  Excellency  Mr.  Beernaert  having  remarked  that  the  subcommission  can- 
not reverse  a  vote  already  taken,  it  is  decided,  on  the  proposition  of  Colonel 
Gross  von  Schwarzhoff,  that  this  question  shall  be  submitted  to  the  drafting 

committee. 
[126]   The  President  states  that  the  first  reading  of  the  articles  of  the  draft  of 
the  Brussels  Declaration  having  been  completed,  the  subcommission  will 
proceed  as  soon  as  possible  to  the  second  reading.^ 

The  meeting  adjourns. 

1  See  in  annex  D  the  text  of  the  draft  of  1874  and  the  text  adopted  on  first  reading  by 
the  subcommission. 


TWELFTH    MEETING 

JULY  1,  1899 


Mr.  Martens  presiding. 

The  minutes  of  the  eleventh  meeting  are  read  and  adopted. 

The  President  gives  an  account  of  the  mission  which  has  been  intrusted  to 
the  drafting  committee.  This  committee  has  revised  the  articles  voted  on  at  the 
first  reading  and  has  remodeled  the  text  of  some  of  them.  The  President  states 
with  satisfaction  that  a  unanimous  agreement  has  been  reached  as  to  the  wording 
of  the  articles,  except  as  regards  Article  59  concerning  which  General  Zuccari 
has  made  some  reservations. 

The  report  of  Mr.  Rolin  ^  having  been  distributed  in  the  form  of  proof 
sheets  to  the  members  of  the  subcommission,  the  President  requests  the  dele- 
j^ates  to  indicate  to  the  reporter  as  soon  as  possible  the  changes  which  they  may 
desire  to  have  introduced  in  his  report,  which  will  then  be  submitted  to  the 
Commission  in  plenary  session. 

This  mode  of  procedure  is  adopted. 

His  Excellency  Mr.  Beernaert  congratulates  Mr.  Rolin  on  his  remarkable 
work.  He  observes,  however,  that  certain  passages  are  not  in  harmony  with 
Mr.  Martens'  important  declaration  which  the  commission  has  adopted  as  its 
own. 

Colonel  Gross  von  Schwarzhofl  likewise  asks  that  some  modifications  be 
made  in  the  report,  the  substance  of  which  he  will  make  known  to  the  reporter. 

Mr.  Rolin  will  take  account  of  these  observations,  especially  the  passage 
of  his  report  referred  to  by  Mr.  Beernaert  and  relating  to  the  old  Articles  9 
and  10. 

The  President  says  that  the  committee  will  be  intrusted  with  drafting,  with 
a  view  to  the  conclusion  of  a  convention,  a  statement  of  the  obligation  which 
will  be  contracted  by  the  States  with  respect  to  the  adoption  of  uniform  rules 
regarding  the  laws  and  customs  of  war.  The  preamble  to  be  prepared  by  the 
•committee  will  be  submitted  to  the  approval  of  the  Commission. 

The  second  reading  of  the  articles  is  now  taken  up,  the  text  unanimously 
proposed  by  the  drafting  committee  serving  as  a  basis. ^ 

Mr.  Rolin,  reporter,  reads  this  text,  pointing  out  the  changes  made  by  this 
committee  in  the  text  adopted  at  the  first  reading,  and  the  reasons  for  these 
changes. 

Article  1  is  adopted  with  the  intercalation,  proposed  by  Sir  John  Ardagh, 
of  the  words  "  and  volunteer  corps  "  after  "  militia  "  in  the  last  paragraph. 

1  See  ante,  p.  415. 

2  See  ante,  p.  434. 

556 


TWELFTH  MEETING,  JULY  1,  1899  557 

Articles  2,  3,  4  and  5  are  adopted. 

Article  6  is  adopted;  the  second  sentence  of  the  first  paragraph  will  be 
worded  as  follows  on  the  motion  of  Messrs.  Renault  and  Beldiman:  "The 
tasks  shall  not  be  excessive  and  shall  have  no  connection  with  the  operation  of 
the  war." 

Article  7  is  adopted  with  the  omission,  proposed  by  his  Excellency  Mr. 
Beernaert,  of  the  words  "  and  as  a  general  principle  "  in  the  second  paragraph. 
Articles  8,  9,  10,  11,  12,  13,  14  and  15  are  adopted.     In  the  last  article  the 
words  "  the  necessary  facilities  "  are  replaced  by  the  words  "  every  facility." 

Articles    16   and    17   are   adopted.     Following   a   remark   made   by    Mr. 
[127]   Ariga  and  seconded  by  his  Excellency  Mr.  Beernaert,  it  is  decided,  in 
order  to   avoid   any   misunderstanding,   to   substitute   the   words   "  their 
country's  "  for  the  term  "  national  "  in  Article  17. 
Articles  18,  19,  20,  21  and  22  are  adopted. 

With  regard  to  Article  23,  letters  b  and  c,  Mr.  Bihourd  points  out  that  it  is 
treachery  that  it  is  desired  to  prohibit  rather  than  the  act  of  killing,  with  which 
should  be  classed  the  act  of  wounding. 

Mr.  Rolin  calls  the  attention  of  the  subcommission  to  the  word  "  espe- 
cially "  placed  at  the  beginning  of  the  article,  from  which  it  is  shown  that  the 
object  of  the  provision  is  by  no  means  to  specify  in  advance  everything  that  is 
prohibited.  The  act  of  illtreating  any  person  or  making  him  prisoner  by  treach- 
ery is  likewise  prohibited. 

It  is  nevertheless  decided  to  introduce  under  these  two  letters  the  words 
"  or  wound  "  after  "  to  kill." 

On  motion  of   his  Excellency   Mr.   Beernaert,   letter  g,   which  had   been 
abolished  by  the  drafting  committee,  is  restored  as  follows:  "  (g)  to  destroy  or 
seize  the  enemy's  property,  unless  such  destruction  or  seizure  be  imperatively 
demanded  by  the  necessities  of  war." 
Article  23,  thus  modified,  is  adopted. 
Articles  24,  25,  26,  27  and  28  are  adopted. 

In  Article  28  the  words  "  or  place  "  are  inserted  after  "  town  "  at  the  sug- 
gestion of  his  Excellency  Count  Nigra. 

With  regard  to  Article  29,  his  Excellency  Mr.  Beernaert  remarks  that  the 
new  wording  is  broader  than  that  adopted  at  the  first  reading,  perhaps  even  too 
broad,  since  the  words  "  zone  of  operations "  might  give  rise  to  different  in- 
terpretations. 

Colonel  Gross  von  Schwarzhoff  says  that  by  "  zone  of  operations  "  must  be 
understood  the  territory  where  the  army  is  either  marching  or  at  rest,  including 
the  environs  in  which  this  army  exercises  certain  influence  through  the  range 
of  its  weapons,  by  its  patrols,  or  by  means  of  small  reconnoitering  expeditions. 
His  Excellency  Mr.  Beernaert,  while  pointing  out  that  the  definition  given 
by  Colonel  Gross  von  Schwarzhoff  relates  in  reality  to  the  territory  in  which 
an  army  exercises  actual  authority,  does  not  insist. 
Article  29  is  adopted. 

Articles  30,  31,  32  and  33  are  adopted.     The  words  "under  all  conditions" 
have  been  omitted  from  Article  33  by  the  drafting  committee  and  appear  by  mis- 
take in  the  printed  text.     This  omission  is  upheld. 
Articles  34  to  44,  inclusive,  are  adopted. 
Article  45  is  adopted  with  the   following  wording :     "  It  is   forbidden  to 


558  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

compel  the  population  of  occupied  territory  to  swear  allegiance  to  the  hostile 
Power." 

Articles  46  to  50,  inclusive,  are  adopted. 

Article  51  is  adopted  with  the  omission,  on  the  motion  of  Mr.  Beldiman, 
of  the  useless  words  "  of  contributions  "  in  the  second  paragraph. 

Article  52  is  adopted. 

In  connection  with  Article  53,  Mr.  Rolin  mentions  a  proposition  which  was 
communicated  to  him  by  Colonel  von  Schnack,  advocating  the  insertion  at  the 
beginning  of  this  article  of  the  words  "  of  invasion  or  occupation  "  instead  of 
"  occupation."  It  is  certain,  as  a  matter  of  fact,  that  this  article  does  not  con- 
cern solely  the  occupant  in  the  sense  of  Article  42. 

Colonel  Gross  von  Schwarzhoff  says  it  is  difficult  to  realize  the  scope  of 
this  modification  at  first  sight.  It  appears  to  him  nevertheless  that  it  would 
place  in  doubt  the  whole  system  of  the  articles  of  the  third  section,  which  would 
have  to  be  revised  if  it  were  desired  to  take  into  account  the  distinction  between 
the  invader  and  the  occupant.  The  first  article  of  this  section,  that  is  Article 
42,  gives  a  quasi-juridical  definition  of  the  term  "  occupation,"  but  in  the  ma- 
jority of  the  following  articles  the  words  "  occupied,  occupant,  and  occupation  " 
are  used  in  a  broader  and  so  to  speak  military  sense,  which  comprises  at  once 
invasion  and  occupation. 

By  the  addition  of  the  words  "  or  invades  "  to  the  words  "  which  occupies  " 
in  a  single  one  of  these  articles,  doubts  would  arise  as  to  whether  the  other 
articles,  which  speak  only  of  occupation,  are  to  apply  likewise  to  the  period  of 
invasion. 

An  answer  might  be  given  in  the  negative,  and  this  would  warrant  the 
invader  for  instance  in  forcing  the  population  to  take  part  in  the  operations 
against  its  country. 

If  it  is  not  desired  to  refer  the  matter  to  the  drafting  committee,  it  would 
be  very  useful  to  state  in  the  report  that  there  was  no  intention  of  making  any 

distinction  between  the  invader  and  the  occupant. 
[128]   Mr.  Rolin  recognizes  that  the  proposed  modification  might  in  fact  give 
rise  to  difficulties,  and  Colonel  von  Schnack  withdraws  his  proposition. 

This  article,  in  the  second  paragraph  of  which  the  words  "  even  though  " 
are  substituted  fof  the  word  "  although,"  gives  rise  to  the  explanation  furnished 
by  Mr.  Rolin,  following  observations  by  Messrs.  Motono,  Veljkovitch  and 
General  Sir  John  Ardagh,  to  the  effect  that,  in  the  cases  contemplated  by  this 
article  the  belligerents  do  not  acquire  the  ownership  of  things  belonging  to 
private  individuals  and  that  it  is  a  question  only  of  a  seizure  giving  rise  to  resti- 
tution if  possible  and  to  indemnity  if  the  occasion  arises;  only  this  indemnity 
remains  in  abeyance  until  the  conclusion  of  peace. 

Article  53  is  adopted. 

Articles  54  to  58,  inclusive,  are  adopted. 

With  regard  to  Article  59,  Captain  Crozier  asks  what  rule  is  to  govern 
the  status  of  the  sick  and  wounded  who  do  not  belong  to  the  adversary  and 
who  are  brought  into  the  neutral  territory.  Can  they  take  part  again  in  the 
operations  of  the  war? 

Mr.  Rolin  answers  that  there  was  no  thought  of  limiting  the  right  of  the 
neutral  to  allow  free  passage  through  its  territory  to  the  sick  and  wounded  of 
the  belligerents  on  their  way  to  their  own  country;  but  it  is  important  that 


ANNEXES  559 

the  neutral   should  not  make  any   distinctions   in  the  granting  of  this   favor. 
His  Excellency  Mr.  Beernaert  points  out  that  it  is  necessary  to  take  into 
account  three  different  cases : 

1.  That  in  which  the  victor  asks  that  his  own  sick  and  wounded  be  allowed 
to  pass  through  the  territory  of  the  neutral. 

2.  That  in  which  he  also  brings  sick  or  wounded  prisoners  of  war  in  order 
to  have  them  pass  through  the  neutral  territory. 

3.  That  in  which  he  intrusts  to  the  care  of  the  neutral  the  sick  or  wounded 
of  his  own  army  who  are  not  able  to  be  transported  any  further. 

The  neutral  is  authorized  to  allow  the  former  to  pass ;  but  the  sick  or 
wounded  prisoners  must  be  delivered  to  him.  Likewise  he  must  guard  the  sick  or 
wounded  of  the  victorious  army  who  may  be  intrusted  to  him,  and  in  order  to 
express  this  rule  the  words  "  belonging  to  the  hostile  party  "  might  be  omitted 
from  the  second  paragraph. 

Mr.  Rolin  objects  that  there  would  then  be  a  discrepancy  between  the 
first  and  second  paragraphs,  which  discrepancy  would  be  still  further  enhanced, 
by  the  words  "  brought  under  these  conditions  "  appearing  at  the  head  of  the 
second  paragraph.  It  would  really  amount  to  a  withdrawal  of  any  privilege 
to  pass  through. 

Colonel  Gross  von  SchwarzhofT  remarks  that  the  case  contemplated  by 
his  Excellency  Mr.  Beernaert  under  number  3  can  occur  but  rarely ;  that  is  to 
say,  when  the  condition  of  a  sick  or  wounded  person  becomes  worse  during  trans- 
portation. 

Following  an  exchange  of  views  on  this  subject,  in  which  Messrs.  Asser  and 
Chevalier  Descamps  take  part,  the  text  of  the  article  is  maintained,  save  the 
addition  of  the  following  sentence  with  a  view  to  providing  for  the  case  pointed 
out  by  his  Excellency  Mr.  Beernaert  :  "  The  same  duty  shall  devolve  on  the 
neutral  State  with  regard  to  wounded  or  sick  of  the  other  army  who  may  be  com- 
mitted to  its  care." 

Article  60  is  adopted. 

The  President  expresses  hearty  thanks  to  the  reporter  for  his  remarkable 
work  and  to  the  members  of  the  subcommission  for  their  friendly  cooperation 
and  the  spirit  of  conciliation  which  they  have  caused  to  preside  over  the  difficult 
labors  of  the  subcommission,  now  brought  to  a  successful  conclusion. 

The  meeting  adjourns. 


Annex  A 

[129] 

New^  wording  of  Articles  1  to  6  (combined  with  Articles  40  to  42)  proposed 

by  Mr.  Rolin,  reporter 

Title  of  this  chapter:     On  the  occupation  of  hostile  territory;  contributions 

and  requisitions 

Article  1.     (Already  voted.    As  in  the  Brussels  text.) 


560  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

Article  2.  (Already  voted,  but  ivhose  wording  might  on  second  reading 
be  agreed  upon  as  follows :  "  The  occupant  shall  take  all  the  measures  in  his 
power  to  restore  and  ensure  public  order  and  safety.") 

Article  3.  New  wording  proposed:  '*  The  existing  laws  remain  in  force 
in  the  occupied  territory  and  if  the  occupant  is  induced,  owing  to  the  necessities 
of  the  war,  to  modify,  suspend,  or  replace  them,  these  measures  shall  be  only  of 
a  purely  provisional  character,  limited  according  to  the  extent  and  duration  of 
the  occupation." 

Article  4.  The  subcommission  voted  provisionally  for  the  suppression  of 
this  article. 

Article  5.^  New  wording  proposed:  "li  the  occupant  collects  the  taxes 
for  his  own  benefit  he  thereby  incurs  the  obligation  to  defray  the  expenses  of 
the  administration  of  the  occupied  territory  to  the  same  extent  as  the  legitimate 
Government  is  so  bound." 

Article  5a  \  Article  proposed  as  a  substitute  for  Article  41  of  the  Declara- 
tion of  Brussels:  "If  the  occupant  levies  extraordinary  contributions,  either 
by  way  of  fines,  or  as  an  equivalent  for  unpaid  taxes  or  payments  not  furnished 
in  kind,  he  shall  proceed  so  far  as  possible  only  in  accordance  with  the  local 
rules  governing  incidence  and  assessment. 

"  Contributions  shall  be  imposed  only  on  the  order  and  on  the  responsibility 
of  the  commander  in  chief  or  the  superior  civil  authority  established  at  the 
place. 

"  For  every  contribution  a  receipt  shall  be  given  to  the  person  furnishing  it." 

Article  5b.^  Article  proposed  as  a  substitute  for  Articles  40  and  42  of 
the  Declaration  of  Brussels:  "  Payments  in  kind  and  in  general  all  requisitions 
levied  against  communes  and  inhabitants  shall  be  commensurate  with  the  gen- 
erally recognized  necessities  of  war,  in  proportion  to  the  resources  of  the  coun- 
try, and  of  such  a  nature  as  not  to  imply  the  obligation  on  the  part  of  the  popula- 
tion to  take  part  in  operations  of  war  against  their  country. 

"  Requisitions  shall  be  made  only  with  the  authorization  of  the  commander 
in  chief  in  the  territory  occupied. 

"  Contributions  in  kind  shall,  as  far  as  possible,  be  paid  for  in  cash,  and  if  not 
vouchers  shall  be  given." 

Article  6.  New  wording  in  accordance  zvith  the  conclusions  of  his  Ex- 
cellency Mr.  Beernaert  :  "If  the  army  which  invades  or  occupies  a  territory 
proceeds  to  seize  movable  objects  which  may  be  used  for  the  operations  of  the 
war,  such  as  railway  or  telegraph  plant,  steamers  and  other  ships  (apart  from 
cases  governed  by  maritime  law),  arms  and  munitions  of  war,  this  seizure  shall 
never  have  any  other  character  than  that  of  a  sequestration  so  far  as  concerns 
those    of    the    objects    which    are    the    property    of    companies    or    of    private 

persons. 
[130]   "Especially  the  plant  of  railways  coming  from  neutral  States,  whether 
the  property  of  those  States  or  of  companies  or  of  private  persons,  shall  be 
sent  back  to  them  as  soon  as  possible  and  shall  not  be  used  for  military  opera- 
tions." 

Articles  7  and  8.     (Without  jnodification.) 

^  These  two  articles,  5  and  5a,  are  to  be  connected  with  Article  A  proposed  by  his  Ex- 
cellency Mr.  Beernaert. 

2  This  Article  5b  is  to  be  connected  with  Article  B  proposed  by  his  Excellency  Mr. 
Beernaert. 


ANNEXES  561 

Annex  B 

Texts  proposed  to  the  subcommission  by  the  drafting  committee,  which 
met  June  13  and  16  under  the  presidency  of  his  Excellency  Mr. 

Leon  Bourgeois 

In  the  course  of  its  last  meeting  the  subcommission  appointed  a  drafting 
committee  composed  of  Messrs.  Beldiman,  Colonel  a  Court,  Colonel  Gross 
VON  ScHWARZHOFF,  Coloncl  GiLiNSKY,  Lammasch,  Renault,  General  Zuccari 
and  RoLiN,  the  latter  as  reporter. 

At  the  end  of  the  same  meeting,  in  view  of  the  divergence  of  views  which 
had  manifested  itself  on  the  subject  of  the  wording  of  the  new  articles  intended 
to  replace  Articles  40,  41  and  42  of  the  Declaration  of  Brussels  draft,  the  sub- 
commission,  on  the  motion  of  Messrs.  Beldiman  and  Leon  Bourgeois,  en- 
trusted to  this  same  committee  the  task  of  formulating  a  new  wording  of  these 
articles;  and  the  committee  was  instructed  to  set  forth  in  a  new  text  only  the 
points  on  which  an  agreement  seemed  possible. 

The  committee  met  twice.  All  the  members  designated  took  part  in  its 
deliberations.  Mr.  Bourgeois  kindly  joined  the  committee,  as  well  as  Messrs. 
Beernaert,  van  Karnebeek,  and  Odier. 

After  a  thorough  discussion  under  the  presidency  of  Mr.  Leon  Bourgeois, 
and  following  exchanges  of  views  with  Messrs.  Beernaert,  van  Karnebeek, 
and  Odier,  the  committee  unanimously  agreed  to  present  to  the  subcommission 
the  text  of  four  articles  relative  to  contributions  and  requisitions.  These  new 
texts  are  preceded  by  a  very  slightly  altered  wording  of  Article  5  relative  to 
established  taxes,  which  was  already  voted  on  the  first  reading. 

DRAFT  PROPOSED  BY  THE    COMMITTEE 

Article  5  (already  voted) 

If,  in  the  territory  occupied,  the  occupant  collects  the  taxes,  dues,  and  tolls 
imposed  for  the  benefit  of  the  State,  he  shall  do  so,  as  far  as  is  possible,  in  ac- 
cordance with  the  rules  of  assessment  and  incidence  in  force,  and  shall  in  con- 
sequence be  bound  to  defray  the  expenses  of  the  administration  of  the  occupied 
territory  to  the  same  extent  as  the  legitimate  Government  was  so  bound. 

Article  A 

In  addition  to  the  taxes  mentioned  in  the  above  article,  the  occupant  can 
levy  other  money  contributions  in  the  occupied  territory  only  for  the  needs  of  the 
army  or  of  the  administration  of  the  territory  in  question. 

Article  B 

No  general  penalty,  pecuniary  or  otherwise,  shall  be  inflicted  upon  the 
[131]   population  on  account  of  the  acts  of  individuals  for  which  they  cannot 
be  regarded  as  jointly  and  severally  responsible. 

Article  C 

No  contribution  shall  be  collected  except  under  a  written  order,  and  on 
the  responsibility  of  a  commander  in  chief. 


562  SECOND  COMMISSION :  SECOND  SUBCOMMISSION 

The  collection  of  the  said  contribution  shall  only  be  effected  as  far  as  pos- 
sible in  accordance  with  the  rules  of  assessment  and  incidence  of  the  taxes  in 
force. 

For  every  contribution  a  receipt  shall  be  given  to  the  contributors. 

Article  D 

Requisitions  in  kind  and  services  shall  not  be  demanded  from  municipalities 
or  inhabitants  except  for  the  needs  of  the  army  of  occupation.  They  shall  be 
in  proportion  to  the  resources  of  the  country,  and  of  such  a  nature  as  not  to 
involve  the  population  in  the  obligation  of  taking  part  in  the  operations  against 
their  country. 

Such  requisitions  and  services  shall  only  be  demanded  on  the  authority  of 
the  commander  in  the  locality  occupied. 

Contributions  in  kind  shall,  as  far  as  possible,  be  paid  for  in  cash,  and  if 
not,  vouchers  shall  be  given. 


Annex  C 

Report  addressed  to  the  subcommission  by  the  drafting  committee,  which  met 

June  17,  1899,  at  two  o'clock,  under  the  presidency  of  Mr.  Martens, 

respecting  the  text  of  Articles  6,  7  and  8  of  the  Declaration  of 

Brussels  draft  and  the  proposed  modifications  or  additions 

In  its  meeting  of  June  17,  1899  (morning),  the  subcommission,  after  having 
unanimously  adopted  the  first  paragraph  of  Article  6  of  the  Brussels  draft,  re- 
ferred to  the  drafting  committee  the  amendments  and  additional  articles  pro- 
posed on  the  subject  of  the  second  paragraph  of  the  said  article,  charging  it  to 
review  at  the  same  time  Articles  7  and  8  of  the  draft  with  a  view  to  eventual 
modifications. 

The  committee  met  the  same  day  under  the  presidency  of  Mr.  Martens. 
All  of  its  members  were  present,  as  well  as  Messrs.  Beernaert,  Bille,  and 
Odier. 

With  regard  to  the  second  paragraph  of  Article  6,  the  committee,  after  a 
thorough  discussion,  recognized  that  if  it  was  desired  to  give  too  exact  a  word- 
ing it  would  probably  be  impossible  to  reach  an  agreement,  and  that  it  there- 
fore seemed  best  to  preserve,  save  for  some  modifications  of  detail,  the  text  of 
the  Brussels  draft. 

The  committee  then  admitted  the  principle  of  the  amendment  proposed  by 
Mr.  BiLLE  by  deciding  to  say  "  land  telegraphs,  including  landing  cables." 

The  committee  did  not  believe  it  expedient  on  this  occasion  to  deal  inci- 
dentally with  the  nature  of  the  rights  of  the  littoral  State  on  the  territorial  sea 
and  with  the  extent  of  the  latter,  and  it  is  for  this  reason  that  it  did  not  accept 
the  last  words  of  Mr.  Bille's  amendment. 

It  was  agreed,  on  the  motion  of  Mr.  Lammasch,  that  the  article  was  to  apply 
equally  to  telephones. 


ANNEXES  563 

[132]   Therefore  the  commitee  has  the  honor  to  propose  that  the  subcommission 
adopt  the  following  wording  for  the  second  paragraph  of  Article  6: 

Railway  plant,  land  telegraphs,  including  landing  cables,  telephones, 
steamers  and  other  ships,  apart  from  cases  governed  by  maritime  law,  as  well 
as  depots  of  arms  and  generally  all  kinds  of  munitions  of  war,  although 
belonging  to  companies  or  to  private  persons,  are  likewise  material  which 
may  serve  for  military  operations,  and  which  cannot  be  left  by  the  army 
of  occupation  at  the  disposal  of  the  enemy.  Railway  plant,  land  telegraphs, 
including  landing  cables  and  telephones,  as  well  as  steamers  and  other  ships 
above  mentioned  shall  be  restored  and  compensation  fixed  when  peace  is 
made. 

It  must  be  stated  to  the  subcommission  that  the  committee  did  not  think  it  ne- 
cessary to  specially  stipulate,  with  regard  to  the  application  of  this  article,  that  the 
belligerent  who  makes  a  seizure  is  obliged  to  give  a  receipt  as  in  the  case  of  re- 
quisitions ;  but  the  committee  was  nevertheless  of  the  opinion  that  the  fact  of 
the  seizure  must  clearly  be  stated  in  one  way  or  another,  if  only  to  furnish  the 
owner  of  the  objects  seized  with  an  opportunity  to  claim  the  indemnity  ex- 
pressly provided  for  in  the  text. 

The  motion  of  Mr.  Odier  to  have  it  stated  that  "  railway  plant,  even  when 
belonging  to  the  enemy  State,  shall  be  restored  when  peace  is  made,"  was  not 
accepted.  The  committee  considered  this  question  as  one  of  those  which  must 
be  settled  by  the  treaty  of  peace. 

The  committee  likewise  found  before  it  a  proposal  of  his  Excellency  Mr. 
Beernaert  concerning  neutral  railway  plant,  prescribing  the  immediate  restitu- 
tion of  this  material  by  the  belligerent,  and  forbidding  the  latter  to  use  it  for 
the  needs  of  the  war.  In  this  case  as  in  that  of  Article  6  it  appeared  to  the 
committee  that  in  view  of  the  necessities  of  war  a  wording  too  precise  and 
minute  would  tend  to  cause  difficulties  rather  than  to  avoid  them.  Consequently, 
the  text  proposed  by  Mr.  Beernaert  was  slightly  modified  and  the  committee 
suggests  making  it  the  object  of  a  special  article  worded  as  follows : 

The  plant  of  railways  coming  from  neutral  States,  whether  the  property 
of  those  States  or  of  companies  or  of  private  persons,  shall  be  sent  back  to 
them  as  soon  as  possible. 

Concerning  Article  7  of  the  Brussels  draft,  the  committee  thought  it  might 
be  adopted  without  any  modification. 

Finally,  as  to  Article  8,  the  committee  suggests  adopting  it  with  only  a  very 
slight  modification  at  the  end  of  the  article  relating  to  proceedings  by  the  com- 
petent authorities.  In  order  not  to  raise  here  a  question  of  competence  the 
committee  proposes  to  redraft  the  second  paragraph  of  this  article  in  the  follow- 
ing terms: 

All  seizure  or  destruction  of,  or  wilful  damage  to,  institutions  of  this 
character,  historic  monuments,  works  of  art  and  science,  is  forbidden,  and 
should  be  made  the  subject  of  legal  proceedings. 

With  regard  to  the  first  paragraph  of  this  article,  the  committee  was  in- 
formed that  an  explanation  had  been  requested  by  General  Mirza  Riza  Khan 
concerning  the  scope  of  the  expression  "  institutions  dedicated  to  religion."  In 
accordance  with  what  was  clearly  said  in  1874  at  Brussels  (Protocol  No.  18),  the 


564 


SECOND  COMMISSION:  SECOND  SUBCOMMISSION 


committee  considers  that  there  is  no  distinction  to  be  made  on  this  subject  be- 
tween the  various  religions,  and  that  the  expression  referred  to  therefore  equally 
applies  to  mosques. 

All  of  the  decisions  of  the  committee  mentioned  in  the  present  report  were 
unanimous. 


Annex  D 
[133] 

TEXT  OF  THE  PROJECT  OF 

THE  DECLARATION  OF 

BRUSSELS  OF  1874 


TEXT  ADOPTED   ON   FIRST 
READING  BY  THE  SUB- 
COMMISSION  ^ 


On  Military  Authority  over  Hostile  Territory 


Article  1 

Territory  is  considered  occupied 
when  it  is  actually  placed  under  the  au- 
thority of  the  hostile  army. 

The  occupation  extends  only  to  the 
territory  where  such  authority  has  been 
established  and  can  be  exercised. 

Article  2 

The  authority  of  the  legitimate  Power 
being  suspended  and  having  in  fact 
passed  into  the  hands  of  the  occupant, 
the  latter  shall  take  all  the  measures  in 
his  power  to  restore  and  ensure,  as  far 
as  possible,  public  order  and  safety. 

Article  3 

With  this  object  he  shall  maintain 
the  laws  which  were  in  force  in  the 
country  in  time  of  peace,  and  shall  not 
modify,  suspend  or  replace  them  unless 
necessary. 

Article  4 

The  functionaries  and  employees  of 
every  class  who  consent,  on  his  invita- 
tion, to  continue  their  functions,  shall 
enjoy  his  protection.  They  shall  not 
be  dismissed  or  subjected  to  disciplin- 
ary punishment  unless  they  fail  in  ful- 
filling  the    obligations    undertaken    by 

1  N.  B.    The  word  "  article  "  is  written  in  italic  letters  when  the  original  text  of  Brus- 
sels has  been  changed  by  the  subcommission. 


Article  1 

Territory  is  considered  as  occupied 
when  it  is  actually  placed  under  the  au- 
thority of  the  hostile  army. 

The  occupation  extends  only  to  the 
territory  where  such  authority  has  been 
established  and  can  be  exercised. 

Article 

The  authority  of  the  legitimate  Power 
having  in  fact  passed  into  the  hands 
of  the  occupant,  the  latter  shall  take 
all  the  measures  in  his  power  to  re- 
store and  ensure,  as  far  as  possible, 
public  order  and  safety,  while  respect- 
ing unless  absolutely  prevented  the  laws 
in  force  in  the  country. 

(Articles  2  and  3  have  been  combined 
in  the  above  text.) 


Suppressed. 


ANNEXES 


565 


them,  and  they  shall  not  be  prosecuted 
unless  they  betray  their  trust. 

Article  5 

The  army  of  occupation  shall  only 
collect  the  taxes,  dues,  duties  and  tolls 

imposed  for  the  benefit  of  the 
[134]   state,   or  their  equivalent,  if   it 

is  impossible  to  collect  them,  and, 
as  far  as  is  possible,  in  accordance  with 
the  existing  forms  and  practice.  It 
shall  devote  them  to  defraying  the  ex- 
penses of  the  administration  of  the 
country  to  the  same  extent  as  the  legi- 
timate  Government   was   so   obligated. 

Article  6 

An  army  of  occupation  can  only  take 
possession  of  cash,  funds,  and  realizable 
securities  which  are  strictly  the  prop- 
erty of  the  State,  depots  of  arms,  means 
of  transport,  stores  and  supplies,  and, 
generally,  all  movable  property  belong- 
ing to  the  State  which  may  be  used  for 
the  operations  of  the  war. 

Railway  plant,  land  telegraphs,  steam- 
ers and  other  ships,  apart  from  cases 
governed  by  maritime  law,  as  well  as 
depots  of  arms  and,  generally,  all  kinds 
of  war  material,  even  if  belonging  to 
companies  or  to  private  persons,  are 
likewise  material  which  may  serve  for 
military  operations  and  which  cannot 
be  left  by  the  army  of  occupation  at  the 
disposal  of  the  enemy.  Railway  plant, 
land  telegraphs,  as  well  as  steamers  and 
other  ships  above  mentioned  shall  be 
restored  and  compensation  fixed  when 
peace  is  made. 


Article  7 

The  occupying  State  shall  be  re- 
garded only  as  administrator  and 
usufructuary  of  public  buildings,  real 
estate,  forests,  and  agricultural  estates 


Article 

If,  in  the  territory  occupied,  the  oc- 
cupant collects  the  taxes,  dues,  and  tolls 
imposed  for  the  benefit  of  the  State, 
he  shall  do  so,  as  far  as  is  possible,  in 
accordance  with  the  rules  of  assessment 
and  incidence  in  force,  and  shall  in  con- 
sequence be  bound  to  defray  the  ex- 
penses of  the  administration  of  the  oc- 
cupied territory  to  the  same  extent  as 
the  legitimate  Government  was  so 
bound. 

Article 

An  army  of  occupation  can  only  take 
possession  of  cash,  funds,  and  realizable 
securities  which  are  strictly  the  property 
of  the  state,  depots  of  arms,  means  of 
transport,  stores  and  supplies,  and,  gen- 
erally, all  movable  property  belonging 
to  the  State  which  may  be  used  for  the 
operations  of  the  war. 

Railway  plant,  land  telegraphs,  in- 
cluding landing  cables,  telephones, 
steamers  and  other  ships,  apart  from 
cases  governed  by  maritime  law,  as 
well  as  depots  of  arms  and  generally 
all  kinds  of  munitions  of  war,  although 
belonging  to  companies  or  to  private 
persons,  are  likewise  material  which 
may  serve  for  military  operations,  and 
which  cannot  be  left  by  the  army  of 
occupation  at  the  disposal  of  the  enemy. 
Railway  plant,  land  telegraphs,  includ- 
ing landing  cables  and  telephones,  as 
well  as  steamers  and  other  ships  above- 
mentioned  shall  be  restored  and  com- 
pensation fixed  when  peace  is  made. 

Article 

The  plant  of  railways  coming  from 
neutral  States,  whether  the  property  of 
those  States  or  of  companies  or  of 
private  persons,  shall  be  sent  back  to 
them  as  soon  as  possible. 

Article 

The  occupying  State  shall  be  re- 
garded only  as  administrator  and 
usufructuary  of  public  buildings,  real 
estate,  forests,  and  agricultural  estates 


566 


SECOND  COMMISSION :  SECOND  SUBCOMMISSION 


belonging  to  the  hostile  State,  and  sit- 
uated in  the  occupied  country.  It  must 
safeguard  the  capital  of  these  proper- 
ties, and  administer  them  in  accordance 
with  the  rules  of  usufruct. 

Article  8 

The  property  of  municipalities,  that 

of    institutions    dedicated    to    religion, 

charity  and  education,  the  arts 

[135]   and    sciences    even   when    State 

property,    shall    be    treated    as 

private  property. 

All  seizure  or  destruction  of,  or  wil- 
ful damage  to,  institutions  of  this  char- 
acter, historic  monuments,  works  of 
art  and  science  should  be  made  the  sub- 
ject of  legal  proceedings  by  the  com- 
petent authorities. 


belonging  to  the  hostile  State,  and  sit- 
uated in  the  occupied  country.  It  must 
safeguard  the  capital  of  these  proper- 
ties, and  administer  them  in  accordance 
with  the  rules  of  usufruct. 

Article 

The  property  of  municipalities,  that 
of  institutions  dedicated  to  religion, 
charity  and  education,  the  arts  and  sci- 
ences even  when  State  property,  shall  be 
treated  as  private  property. 

All  seizure  or  destruction  of,  or  will- 
ful damage  to,  institutions  of  this  char- 
acter, historic  monuments,  works  of  art 
and  science,  is  forbidden,  and  should 
be  made  the  subject  of  legal  proceed- 
ings. 


Who  Should  be  Recognized  as  Belligerents  ;  Combatants  and 

Non-combatants 


Article  9 

The  laws,  rights,  and  duties  of  war 
apply  not  only  to  armies,  but  also  to 
militia  and  volunteer  corps  fulfilling 
the  following  conditions : 

1.  That  they  be  commanded  by  a  per- 
son responsible  for  his  subordinates  ; 

2.  That  they  have  a  fixed  distinctive 
emblem  recognizable  at  a  distance ; 

3.  That  they  carry  arms  openly ;  and 

4.  That  they  conduct  their  operations 
in  accordance  with  the  laws  and  cus- 
toms of  war. 

In  countries  where  militia  constitute 
the  army,  or  form  part  of  it,  they  are 
included  under  the  denomination 
"  army." 

Article  10 

The  population  of  a  territory  which 
has  not  been  occupied,  who,  on  the  ap- 
proach of  the  enemy,  spontaneously 
take  up  arms  to  resist  the  invading 
troops  without  having  had  time  to  or- 
ganize themselves  in  accordance  with 
Article  9,  shall  be  regarded  as  belliger- 
ents if  they  respect  the  laws  and  cus- 
toms of  war. 


Article 

The  laws,  rights,  and  duties  of  war 
apply  not  only  to  armies,  but  also  to 
militia  and  volunteer  corps  fulfilling  the 
following  conditions : 

1.  That  they  be  commanded  by  a  per- 
son responsible  for  his  subordinates; 

2.  That  they  have  a  fixed  distinctive 
emblem  recognizable  at  a  distance ; 

3.  That  they  carry  arms  openly ;  and 

4.  That  they  conduct  their  operations 
in  accordance  with  the  laws  and  cus- 
toms of  war. 

In  countries  where  militia  constitute 
the  army,  or  form  part  of  it,  they  are 
included  under  the  denomination 
"  army." 

Article 

The  population  of  a  territory  which 
has  not  been  occupied,  who,  on  the 
approach  of  the  enemy,  spontaneously 
take  up  arms  to  resist  the  invading 
troops  without  having  had  time  to 
organize  themselves  in  accordance  with 
Article  9,  shall  be  regarded  as  belliger- 
ents, if  they  respect  the  laws  and  cus- 
toms of  war. 


ANNEXES 


567 


Article  11 

The  armed  forces  of  the  belligerent 
parties  may  consist  of  combatants  and 
non-combatants.  In  case  of  capture 
by  the  enemy,  both  shall  enjoy  the  rights 
of  prisoners  of  war. 


Article 

The  armed  forces  of  the  belligerent 
parties  may  consist  of  combatants  and 
non-combatants.  In  case  of  capture 
by  the  enemy,  both  shall  enjoy  the  rights 
of  prisoners  of  war. 


Means  of  Injuring  the  Enemy 


Article  12 

The  laws  of  war  do  not  recognize  in 
belligerents  an  unlimited  power  in  the 
adoption  of  means  of  injuring  the 
enemy. 


Article 

The  right  of  belligerents  to  adopt 
means  of  injuring  the  enemy  is  not  un- 
hmited. 


[136] 


Article  13 


According  to  this  principle  are 
especially  forbidden: 

a.  Employment  of  poison  or  poisoned 
weapons ; 

b.  Murder  by  treachery  of  individu- 
als belonging  to  the  hostile  nation  or 
army ; 

c.  Murder  of  an  enemy  who,  having 
laid  down  his  arms  or  having  no  longer 
means  of  defense,  has  surrendered  at 
discretion ; 

d.  The  declaration  that  no  quarter 
will  be  given ; 

e.  The  employment  of  arms,  projec- 
tiles or  material  calculated  to  cause  un- 
necessary suffering,  as  well  as  the  use 
of  projectiles  prohibited  by  the  Declara- 
tion of  St.  Petersburg  of  1868; 

/.  Making  improper  use  of  a  flag  of 
truce,  of  the  national  flag  or  of  the 
military  insignia  and  uniform  of  the 
enemy,  as  well  as  the  distinctive  badges 
of  the  Geneva  Convention; 

g.  Any  destruction  or  seizure  of  the 
enemy's  property  that  is  not  impera- 
tively demanded  by  the  necessity  of  war. 


Article  14 

Ruses  of  war  and  the  employment  of 
measures  necessary  for  obtaining  in- 
formation about  the  enemy  and  the 
country  (excepting  the  provisions  of 
Article  36)  are  considered  permissible. 


Article 
Especially  forbidden  are : 

a.  Employment  of  poison  or  poisoned 
weapons ; 

b.  Murder  by  treachery  of  individu- 
als belonging  to  the  hostile  nation  or 
army ; 

c.  Murder  of  an  enemy  who,  having 
laid  down  his  arms  or  having  no  longer 
means  of  defense,  has  surrendered  at 
discretion ; 

d.  The  declaration  that  no  quarter 
will  be  given ; 

e.  The  employment  of  arms,  projec- 
tiles or  material  calculated  to  cause  un- 
necessary suffering,  as  well  as  the  use 
of  projectiles  prohibited  by  the  Declara- 
tion of  St.  Petersburg  of  1868 ; 

/.  Making  improper  use  of  a  flag  of 
truce,  of  the  national  flag  or  of  the 
military  insignia  and  uniform  of  the 
enemy,  as  well  as  the  distinctive  badges 
of  the  Geneva  Convention ; 

g.  Any  destruction  or  seizure  of  the 
enemy's  property  that  is  not  impera- 
tively demanded  by  the  necessity  of 
war. 

Article 

Ruses  of  war  and  the  employment  of 
measures  necessary  for  obtaining  in- 
formation about  the  enemy  and  the 
country  (excepting  the  provisions  of 
Article  36)  are  considered  permissible. 


568 


SECOND  COMMISSION:  SECOND  SUBCOMMISSION 


Sieges  and  Bombardments 


Article  15 
Fortified  places  are  alone  liable  to  be 
besieged.  Open  towns,  agglomerations 
of  dwellings,  or  villages  which  are  not 
defended  can  neither  be  attacked  nor 
bombarded. 

Article  16 

But  if  a  town  or  fortress,  agglomera- 
tion of  dwellings  or  village,  is  defended, 
the  officer  in  command  of  an  attacking 
force  must,  before  commencing  a  bom- 
bardment, except  in  assault,  do  all  in 
his  power  to  warn  the  authorities. 

Article  17 

[137]  In  such  cases  all  necessary  steps 
must  be  taken  to  spare,  as  far  as 
possible,  buildings  dedicated  to  art,  sci- 
ence, or  charitable  purposes,  hospitals, 
and  places  where  the  sick  and  wounded 
are  collected  provided  they  are  not  be- 
ing used  at  the  time  for  military  pur- 
poses. 

It  is  the  duty  of  the  besieged  to  indi- 
cate the  presence  of  such  buildings  by 
distinctive  and  visible  signs  to  be  com- 
municated to  the  enemy  beforehand. 

Article  18 

A  town  taken  by  assault  ought  not 
to  be  given  over  to  pillage  by  the  vic- 
torious troops. 


Article 
Towns,  villages,  dwellings,  or  build- 
ings which  are  not  defended  can  neither 
be  attacked  nor  bombarded. 


Article 

The  officer  in  command  of  an  at- 
tacking force  must,  before  commencing 
a  bombardment,  except  in  cases  of  as- 
sault, do  all  in  his  power  to  warn  the 
authorities. 


Article 

In  sieges  and  bombardments,  all 
necessary  steps  must  be  taken  to  spare, 
as  far  as  it  is  possible,  buildings  dedi- 
cated to  religion,  art,  science,  or  chari- 
table purposes,  hospitals  and  places 
where  the  sick  and  wounded  are  col- 
lected, provided  they  are  not  being  used 
at  the  time  for  military  purposes. 

It  is  the  duty  of  the  besieged  to  indi- 
cate the  presence  of  such  buildings  by 
distinctive  and  visible  signs  to  be  com- 
municated to  the  enemy  beforehand. 

Article 

It  is  forbidden  to  give  over  to  pillage 
a  town  taken  by  storm. 


Spies 


Article  19 

A  person  can  only  be  considered  a 
spy  when,  acting  clandestinely  or  on 
false  pretenses,  he  obtains  or  endeavors 
to  obtain  information  in  the  districts 
occupied  by  the  enemy,  with  the  inten- 
tion of  communicating  it  to  the  hostile 
party. 


Article 


A  person  can  only  be  considered  a 
spy  when,  acting  clandestinely  or  on 
false  pretenses,  he  obtains  or  endeavors 
to  obtain  information  in  the  territories 
occupied  by  the  enemy,  with  the  inten- 
tion of  communicating  it  to  the  hostile 
army. 


Article  ^ 

Thus  soldiers  not  wearing  a  disguise 
who  have  penetrated  into  the  zone  of 
operations  of  the  hostile  army,  for  the 

iThis  article  corresponds  to  Article  22  of  the  draft  Declaration  of  Brussels  of  1874. 


ANNEXES 


569 


purpose  of  obtaining  information,  are 
not  considered  spies. 
^  Similarly,  the  following  are  not  con- 
sidered spies:  soldiers  and  civilians, 
carrying  out  their  mission  openly,  in- 
trusted with  the  delivery  of  dispatches 
intended  either  for  their  -own  army  or 
for  the  enemy's  army. 

To  this  class  belong  likewise,  persons 
sent  in  balloons  for  the  purpose  of 
carrying  dispatches  and,  generally,  of 
maintaining  communications  between 
the  different  parts  of  an  army  or  a 
territory. 


Article  20 

A  spy  taken  in  the  act  shall  be  tried 
and  treated  according  to  the  laws  in 
force  in  the  army  which  captures  him. 


Article 

A  spy  taken  in  the  act  shall  not  be 
punished  without  previous  trial. 


Article  21 

A  spy  who  rejoins  the  army  to  which 
he   belongs   and   who   is    subse- 

[138]  quently  captured  by  the  enemy 
is  treated  as  a  prisoner  of  war 

and    incurs    no    responsibility    for    his 

previous  acts. 


Article 

A  spy  who,  after  rejoining  the  army 
to  which  he  belongs,  is  subsequently 
captured  by  the  enemy  is  treated  as  a 
prisoner  of  war  and  incurs  no  respon- 
sibility for  his  previous  acts. 


Article  22 

Soldiers  not  wearing  a  disguise  who 
have  penetrated  into  the  zone  of  opera- 
tions of  the  hostile  army,  for  the  pur- 
pose of  obtaining  information,  are  not 
considered  spies. 

Similarly,  the  following  should  not  be 
considered  spies,  if  they  are  captured 
by  the  enemy:  soldiers  (and  also  civil- 
ians, carrying  out  their  mission  openly) 
intrusted  with  the  delivery  of  dispatches 
intended  either  for  their  own  army  or 
for  the  enemy's  army. 

To  this  class  belong  likewise,  if  they 
are  captured,  persons  sent  in  balloons 
for  the  purpose  of  carrying  dispatches 
and,  generally,  of  maintaining  com- 
munications between  the  different  parts 
of  an  army  or  a  territory. 


(See  above.) 


570 


SECOND  COMMISSION:  SECOND  SUBCOMMISSION 


Prisoners  of  War 


Article  23 


Prisoners  of  war  are  lawful  and  dis- 
armed enemies. 

They  are  in  the  power  of  the  hostile 
Government,  but  not  in  that  of  the  in- 
dividuals or  corps  who  captured  them. 

They  must  be  humanely  treated. 

Any  act  of  insubordination  justifies 
the  adoption  of  such  measures  of  sever- 
ity as  may  be  necessary. 

All  their  personal  belongings  except 
arms  shall  remain  their  property. 

Article  24 

Prisoners  of  war  may  be  interned  in 
a  town,  fortress,  camp,  or  other  place, 
under  obligation  not  to  go  beyond  cer- 
tain fixed  limits;  but  they  can  only  be 
placed  in  confinement  as  an  indispen- 
sable measure  of  safety. 


Article 


Prisoners  of  war  are  in  the  power  of 
the  hostile  Government,  but  not  in  that 
of  the  individuals  or  corps  who  cap- 
tured them. 

They  must  be  humanely  treated. 

All  their  personal  belongings,  except 
arms,  horses,  and  military  papers,  re- 
main their  property. 


Article 

Prisoners  of  war  may  be  interned  in 
a  town,  fortress,  camp,  or  other  place^ 
under  obligation  not  to  go  beyond  cer- 
tain fixed  limits ;  but  they  can  only  be 
placed  in  confinement  as  an  indispensa- 
ble measure  of  safety. 


Article  25 

Prisoners  of  war  may  be  employed  on 
certain  public  works  which  have  no  di- 
rect connection  with  the  operations  in 
the  theater  of  war  and  which  are  not 
excessive  or  humiliating  to  their  mili- 
tary rank,  if  they  belong  to  the  army, 
or  to  their  official  or  social  position,  if 

they  do  not  belong  to  it. 
[139]   They  may  also,  subject  to  such 
regulations  as  may  be  drawn  up 
by  the  military  authorities,  undertake 
private  work. 


Their  wages  shall  go  towards  improv- 
ing their  position  or  shall  be  paid  to 
them  on  their  release.  In  this  case  the 
cost  of  maintenance  may  be  deducted 
from  said  wages. 


Article 

The  State  may  utilize  the  labor  of 
prisoners  of  war  according  to  their  rank 
and  aptitude.  The  tasks  cannot  be  ex- 
cessive ;  they  can  have  no  connection 
with  the  operations  of  the  war. 

Prisoners  may  be  authorized  to  work 
for  the  public  service,  for  private  per- 
sons, or  on  their  own  account. 

Work  done  for  the  State  is  paid  for 
at  the  rates  in  force  for  work  of  a  simi- 
lar kind  done  by  soldiers  of  the  national 
army. 

When  the  work  is  for  other  branches 
of  the  public  service  or  for  private  per- 
sons, the  conditions  are  settled  in  agree- 
ment with  the  ministry  of  war. 

The  wages  of  the  prisoners  shall  go 
towards  improving  their  position,  and 
the  balance  shall  be  paid  them  at  the 
time  of  their  release,  after  deducting 
the  cost  of  their  maintenance. 


Article  26 

Prisoners  of  war  cannot  be  compelled 
in  any  way  to  take  any  part  whatever 
in  carrying  on  the  operations  of  the  war. 


(Articles  25  and  26  have  been  com- 
bined in  the  text  above.) 


ANNEXES 


571 


Article  27 

The  Government  into  whose  hands 
prisoners  of  war  have  fallen  charges 
itself  with  their  maintenance. 

The  conditions  of  such  maintenance 
may  be  settled  by  a  reciprocal  agree- 
ment between  the  belligerent  parties. 

In  the  absence  of  this  agreement,  and 
as  a  general  principle,  prisoners  of  war 
shall  be  treated  as  regards  food  and 
clothing,  on  the  same  footing  as  the 
troops  of  the  Government  which  cap- 
tured them. 


Article 

The  Government  into  whose  hands 
prisoners  of  war  have  fallen  is  charged 
with   their   maintenance. 

The  conditions  of  such  maintenance 
may  be  settled  by  a  reciprocal  agree- 
ment between  the  belligerent  parties. 

In  the  absence  of  this  agreement,  and 
as  a  general  principle,  prisoners  of  war 
shall  be  treated  as  regards  food,  quar- 
ters and  clothing,  on  the  same  footing 
as  the  troops  of  the  Government  which 
captured  them. 


Article  28 

Prisoners  of  war  are  subject  to  the 
laws  and  regulations  in  force  in  the 
army  in  whose  power  they  are. 

Arms  may  be  used,  after  summoning, 
against  a  prisoner  of  war  attempting  to 
escape.  If  recaptured  he  is  liable  to 
disciplinary  punishment  or  subject  to  a 
stricter  surveillance. 


If,  after  succeeding  in  escaping,  he 
is  again  taken  prisoner,  he  is  not  liable 
to  punishment  for  his  previous  acts. 


Article 

Prisoners  of  war  are  subject  to  the 
laws,  regulations,  and  orders  in  force  in 
the  army  of  the  State  in  whose  power 
they  are. 

An  act  of  insubordination  justifies 
the  adoption  of  such  measures  as  may 
be  necessary. 

Escaped  prisoners  who  are  retaken 
before  being  able  to  rejoin  their  army, 
or  before  leaving  the  territory  occupied 
by  the  army  that  captures  them,  are 
liable  to  disciplinary  punishment. 

Prisoners  who,  after  succeeding  in  es- 
caping, are  again  taken  prisoners  are 
not  liable  to  any  punishment  for  the 
previous  flight. 


Article  29 

Every  prisoner  of  war  is  bound  to 
give,  if  questioned  on  the  subject, 
[140]  his  true  name  and  rank,  and  if 
he  infringes  this  rule,  he  is  liable 
to  a  curtailment  of  the  advantages  ac- 
corded to  the  prisoners  of  war  of  his 
class. 

Article  30 

The  exchange  of  prisoners  of  war  is 
regulated  by  a  mutual  understanding  be- 
tween the  belligerent  parties. 


Article 

^  Every  prisoner  of  war  is  bound  to 
give,  if  questioned  on  the  subject,  his 
true  name  and  rank,  and  if  he  infringes 
this  rule,  he  is  liable  to  a  curtailment  of 
the  advantages  accorded  to  the  prison- 
ers of  war  of  his  class. 


(Suppressed.) 


Article  31 

Prisoners  of  war  may  b6  set  at  liberty 
on  parole  if  the  laws  of  their  country 
allow  it,  and,  in  such  cases,  they  are 


Article 

Prisoners  of  war  may  be  set  at  liberty 
on  parole  if  the  laws  of  their  country 
allow  it,  and,  in  such  cases,  they  are 


572 


SECOND  COMMISSION:  SECOND  SUBCOMMISSION 


bound,  on  their  personal  honor,  scrupu- 
lously to  fulfill,  both  towards  their  own 
Government  and  the  Government  by 
which  they  were  made  prisoners,  the 
engagements  they  have  contracted. 

In  such  cases  their  own  Government 
ought  neither  to  require  of  nor  accept 
from  them  any  service  incompatible 
with  the  parole  given. 

Article  32 

A  prisoner  of  war  cannot  be  com- 
pelled to  accept  his  liberty  on  parole ; 
similarly  the  hostile  Government  is  not 
obliged  to  accede  to  the  request  of  the 
prisoner  to  be  set  at  liberty  on  parole. 

Article  33 

Any  prisoner  of  war  liberated  on 
parole  and  recaptured  bearing  arms 
against  the  Government  to  which  he  had 
pledged  his  honor  may  be  deprived  of 
the  rights  accorded  to  prisoners  of  war 
and  brought  before  the  courts. 


bound,  on  their  personal  honor,  scrupu- 
lously to  fulfill,  both  towards  their  own 
Government  and  the  Government  by 
which  they  were  made  prisoners,  the  en- 
gagements they  have  contracted. 

In  such  cases  their  own  Government 
is  bound  neither  to  require  of  nor  ac- 
cept from  them  any  service  incompati- 
ble with  the  parole  given. 

Article 

A  prisoner  of  war  cannot  be  com- 
pelled to  accept  his  liberty  on  parole; 
similarly  the  hostile  Government  is  not 
obliged  to  accede  to  the  request  of  the 
prisoner  to  be  set  at  liberty  on  parole. 

Article 

Any  prisoner  of  war  liberated  on 
parole  and  recaptured  bearing  arms 
against  the  Government  to  which  he  had 
pledged  his  honor,  or  against  its  allies, 
may  be  deprived  of  the  rights  accorded 
to  prisoners  of  war  and  brought  before 
the  courts. 


Article  34 

Individuals  in  the  vicinity  of  armies 
but  not  directly  forming  part  of  them, 
such  as  correspondents,  newspaper  re- 
porters, sutlers,  contractors,  etc.,  can 
also  be  made  prisoners.  These  prison- 
ers should  however  be  in  possession  of 
a  permit  issued  by  the  competent  au- 
thority and  of  a  certificate  of 
[141]  identity. 


Article 

Individuals  -"ho  follow  an  army  with- 
out directly  belonging  to  it,  such  as 
newspaper  correspondents,  and  report- 
ers, sutlers,  and  contractors,  who  fall 
into  the  enemy's  hands  and  whom  the 
latter  thinks  fit  to  detain,  shall  enjoy 
treatment  as  prisoners  of  war  provided 
they  are  in  possession  of  a  certificate 
from  the  military  authorities  of  the 
army  they  were  accompanying. 

Article  ^ 

An  information  bureau  relative  to 
prisoners  of  war  is  instituted,  on  the 
commencement  of  hostilities,  in  each  of 
the  belligerent  States,  and,  when  neces- 
sary, in  neutral  countries  which  have 
received  belligerents  in  their  territory. 
The  function  of  this  bureau  is  to  reply 
to  all  inquiries  about  the  prisoners,  to 
receive  from  the  various  services  con- 
cerned all  the  information  necessary  to 
enable  it  to  make  out  an  individual  re- 


^  The  seven  following  articles  were  voted  on  the  first  reading  by  the  subcommission  on 
the  motion  of  his  Excellency  Mr.  Beernaert. 


[142] 


ANNEXES  573 

turn  for  each  prisoner  of  war.  It  is 
kept  informed  of  internments  and  trans- 
fers, as  well  as  of  admissions  into  hos- 
pital and  deaths. 

It  is  likewise  the  function  of  the  in- 
formation bureau  to  receive  and  collect 
all  objects  of  personal  use,  valuables, 
letters,  etc.,  found  on  the  field  of  battle 
or  left  by  prisoners  who  have  died  in 
hospitals  or  ambulances,  and  to  forward 
them  to  those  concerned. 

Article 

Relief  societies  for  prisoners  of  war, 
which  are  properly  constituted  in  ac- 
cordance with  the  laws  of  their  country 
and  with  the  object  of  serving  as  the 
channel  for  charitable  effort  shall  re- 
ceive from  the  belligerents,  for  them- 
selves and  their  duly  accredited  agents, 
the  necessary  facilities  in  order  that 
they  can  efficiently  perform  their  hu- 
mane task  within  the  bounds  imposed  by 
military  necessities  and  administrative 
regulations.  Agents  of  these  societies 
may  be  admitted  to  the  places  of  in- 
ternment for  the  purpose  of  distributing 
relief,  as  also  to  the  halting-places  of 
repatriated  prisoners,  if  furnished  with 
a  personal  permit  by  the  military  au- 
thorities, and  on  giving  an  undertaking 
in  writing  to  comply  with  all  measures 
of  order  and  police  which  the  latter  may 
issue. 

Article 

Information  bureaus  enjoy  the  privi- 
lege of  free  postage.  Letters,  money 
orders,  and  valuables,  as  well  as  parcels 
by  post,  intended  for  prisoners  of  war, 
or  dispatched  by  them,  shall  be  exempt 
from  all  postal  duties  in  the  countries  of 
origin  and  destination,  as  well  as  in  the 
countries  they  pass  through. 

Presents  and  relief  in  kind  for  prison- 
ers of  war  shall  be  admitted  free  of  all 
import  or  other  duties,  as  well  as  of 
payments  for  carriage  by  State  rail- 
ways. 

Article 

Officers  taken  prisoners  may  receive, 
through  a  neutral  Power,  if  necessary, 


574  SECOND  COMMISSION:  SECOND  SUBCOMMISSION 

the  full  pay  allowed  them  in  this  posi- 
tion by  their  country's  regulations,  the 
amount  to  be  refunded  by  their  Govern- 
ment. 

Article 

Prisoners  of  war  shall  enjoy  com- 
plete liberty  in  the  exercise  of  their  re- 
ligion, including  attendance  at  the  serv- 
ices of  whatever  church  they  may  be- 
long to,  on  the  sole  condition  that  they 
comply  with  the  measures  of  order  and 
police  issued  by  the  military  authorities. 

Article 

The  wills  of  prisoners  of  war  are  re- 
ceived or  drawn  up  in  the  same  way  as 
for  soldiers  of  the  national  army. 

The  same  rules  shall  be  observed  re- 
garding death  certificates  as  well  as  for 
the  burial  of  prisoners  of  war,  due  re- 
gard being  paid  to  their  grade  and  rank. 

Article 

After  the  conclusion  of  peace,  the  re- 
patriation of  prisoners  of  war  shall  be 
carried  out  as  quickly  as  possible. 

The  Sick  and  Wounded 

Article  35  Article 

The  obligations  of  belligerents  with  The  obligations  of  belligerents  with 
respect  to  the  service  of  the  sick  and  respect  to  the  service  of  the  sick  and 
wounded  are  governed  by  the  Geneva  wounded  are  governed  by  the  Geneva 
Convention  of  August  22,  1864,  save  Convention  of  August  22,  1864,  save 
such  modifications  as  the  latter  may  un-  such  modifications  as  the  latter  may  un- 
dergo, dergo. 

On  the  Military  Power  with  Respect  to  Private  Persons  ^ 

Article  36  Article 

[143]  The  population  of  occupied  ter-  The  population  of  occupied  territory 

ritory  cannot  be  forced  to  take  cannot  be  forced  to  take  part  in  mili- 

part  in  military  operations  against  its  tary  operations  against  its  own  coun- 

own  country.  try. 

Article  37  Article 

The  population  of  occupied  territory  The  population  of  occupied  territory 

cannot    be    compelled    to    swear    alle-     cannot    be    compelled    to    swear    alle- 
giance to  the  hostile  Power.  giance  to  the  hostile  Power. 

1  It  has  been  decided  that  the  four  articles  that  form  this  chapter  shall  be  inserted  before 
Article  5  of  the  text  of  1874. 


ANNEXES 


575 


Article  38 

Family  honor  and  rights,  and  the  lives 
and  property  of  persons,  as  well  as  their 
religious  convictions  and  their  practice, 
must  be  respected. 

Private  property  cannot  be  confis- 
cated. 

Article  39 

Pillage  is  formally  forbidden. 


Article 

Family  honor  and  rights,  the  lives  of 
persons,  and  private  property,  as  well  as 
religious  convictions  and  practice  must 
be  respected. 

Private  property  cannot  be  confis- 
cated. 

Article 

Pillage  is  formally  forbidden. 


On  Taxes  and  Requisitions 


Article  40 

As  private  property  should  be  re- 
spected, the  enemy  will  demand  from 
communes  or  inhabitants  only  such  pay- 
ments and  services  as  are  connected 
with  the  generally  recognized  necessi- 
ties of  war,  in  proportion  to  the  re- 
sources of  the  country,  and  not  imply- 
ing, with  regard  to  the  inhabitants,  the 
obligation  of  taking  part  in  operations 
of  war  against  their  country. 

Article  41 

The  enemy  in  levying  contributions, 
whether  as  an  equivalent  for  taxes  (see 
Article  5)  or  for  payments  that  should 
be  made  in  kind,  or  as  fines,  shall  pro- 
ceed, so  far  as  possible,  only  in  ac- 
cordance with  the  rules  for  incidence 
and  assessment  in  force  in  the  territory 
occupied. 

The  civil  authorities  of  the  legitimate 
Government  shall  lend  it  their  assistance 
if  they  have  remained  at  their  posts. 

Contributions  shall  be  imposed  only 
on  the  order  and  on  the  responsibility 
of  the  commander  in  chief  or  the  su- 
perior civil  authority  established  by  the 
enemy  in  the  occupied  territory. 

For  every  contribution  a  receipt  shall 
be  given  to  the  person  furnishing  it. 

[144]  Article  42 

Requisitions  shall  be  malde  only 
with  the  authorization  of  the  com- 
mander in  the  territory  occupied. 


Article  ^ 

If,  in  addition  to  the  taxes  men- 
tioned in  the  above  article,  the  occupant 
levies  other  money  contributions  in  the 
occupied  territory,  this  shall  only  be  for 
the  needs  of  the  army  or  of  the  admin- 
istration of  the  territory  in  question. 


Article 

No  general  penalty,  pecuniary  or 
otherwise,  shall  be  inflicted  upon  the 
population  on  account  of  the  acts  of 
individuals  for  which  they  cannot  be 
regarded  as  jointly  and  severally  re- 
sponsible. 

Article 

No  contribution  shall  be  collected  ex- 
cept under  a  written  order,  and  on  the 
responsibility  of  a  commander  in  chief. 

The  collection  of  the  said  contribu- 
tion shall  only  be  effected  as  far  as  pos- 
sible in  accordance  with  the  rules  of 
assessment  and  incidence  of  the  taxes 
in  force. 

For  every  contribution  a  receipt  shall 
be  given  to  the  contributors. 

Article 

Requisitions  in  kind  and  services 
shall  not  be  demanded  from  municipali- 
ties or  inhabitants  except  for  the  needs 
of  the  army  of  occupation.  They  shall 
be   in   proportion  to  the   resources  of 

1  The  four  new  articles  adopted  by  the  subcommission  will  be  inserted  after  Article  5 
of  the  text  of  1874. 


576 


SECOND  COMMISSION:  SECOND  SUBCOMMISSION 


For  every  requisition  indemnity  shall 
be  granted  or  a  receipt  delivered. 


the  country,  and  of  such  a  nature  as  not 
to  involve  the  population  in  the  obliga- 
tion of  taking  part  in  the  operations 
against  their  country. 

Such  requisitions  and  services  shall 
only  be  demanded  on  the  authority  of 
the  commander  in  the  locality  occupied. 

Contributions  in  kind  shall,  as  far  as 
possible,  be  paid  for  in  cash;  if  not,  a 
receipt  shall  be  given. 


On  Parlementaires 


Article  43 

A  person  is  regarded  as  a  parlemen- 
taire  who  has  been  authorized  by  one  of 
the  belligerents  to  enter  into  communi- 
cation with  the  other,  and  who  advances 
bearing  a  white  flag,  accompanied  by  a 
trumpeter  (bugler  or  drummer)  or  also 
by  a  flag-bearer.  He  shall  have  a  right 
to  inviolability  as  well  as  the  trumpeter 
(bugler  or  drummer)  and  the  flag- 
tearer  who  accompany  him. 

Article  44 

The  commander  to  whom  a  parlemen- 
taire  is  sent  is  not  in  all  cases  and  un- 
der all  conditions  obliged  to  receive  him. 

It  is  lawful  for  him  to  take  all  the 
necessary  steps  to  prevent  the  parlemen- 
taire  taking  advantage  of  his  stay  within 
the  radius  of  the  enemy's  position  to  the 
prejudice  of  the  latter,  and  if  the  par- 
lementaire  has  rendered  himself  guilty 
-of  such  an  abuse  of  confidence,  he  has 
the  right  to  detain  him  temporarily. 

He  may  likewise  declare  beforehand 
that  he  will  not  receive  parlementaires 
during  a  certain  period.  Parlemen- 
taires presenting  themselves  after  such 
a  notification,  from  the  side  to  which  it 
has  been  given,  forfeit  the  right  of 
inviolability. 

Article  45 

The  parlementaire  loses  his  rights  of 
inviolability  if  it  is  proved  in  a  clear 
and  incontestable  manner  that  he  has 
taken  advantage  of  his  privileged  posi- 
tion to  provoke  or  commit  an  act  of 
treason. 


Article 


A  person  is  regarded  as  a  parlemen- 
taire who  has  been  authorized  by  one 
of  the  belligerents  to  enter  into  com- 
munication with  the  other,  and  who  ad- 
vances bearing  a  white  flag,  accom- 
panied by  a  trumpeter,  bugler,  or  drum- 
mer, or  also  by  a  flag-bearer  or  by  an 
interpreter.  He  has  a  right  to  inviola- 
bility as  well  as  the  trumpeter,  bugler, 
or  drummer  and  the  flag-bearer  or  in- 
terpreter who  accompany  him. 

Article 

The  commander  to  whom  a  parlemen- 
taire is  sent  is  not  in  all  cases  and  un- 
der all  conditions  obliged  to  receive  him. 

It  is  lawful  for  him  to  take  all  the 
necessary  steps  to  prevent  the  parle- 
mentaire taking  advantage  of  his  stay 
within  the  radius  of  the  enemy's  posi- 
tion to  the  prejudice  of  the  latter,  and 
if  the  parlementaire  has  rendered  him- 
self guilty  of  such  an  abuse  of  confi- 
dence, he  has  the  right  to  detain  him 
temporarily. 


Article 

The  parlementaire  loses  his  rights  of 
inviolability  if  it  is  proved  in  a  clear 
and  incontestable  manner  that  he  has 
taken  advantage  of  his  privileged  posi- 
tion to  provoke  or  commit  an  act  of 
treason. 


ANNEXES 


577 


[145] 


Capitulations 


Article  46 


The  conditions  of  capitulations  are 
discussed  between  the  contracting  par- 
ties. 

They  must  not  be  contrary  to  mili- 
tary honor. 

Once  settled  by  a  convention,  they 
must  be  scrupulously  observed  by  both 
parties. 


Article 


The  conditions  of  capitulations  are 
discussed  between  the  contracting  par- 
ties. 

They  must  take  into  account  the  rules 
of  military  honor. 

Once  settled  by  a  convention,  they 
must  be  scrupulously  observed  by  both 
parties. 


Armistices 


Article  47 


Article 


An  armistice  suspends  military  oper- 
ations by  mutual  agreement,  between 
the  belligerent  parties.  If  its  duration 
is  not  defined,  the  belligerent  parties 
may  resume  operations  at  any  time,  pro- 
vided always  that  the  enemy  is  warned 
within  the  time  agreed  upon,  in  accord- 
ance with  the  terms  of  the  armistice. 

Article  48 

The  armistice  may  be  general  or  lo- 
cal. The  first  suspends  the  military 
operations  of  the  belligerent  States 
everywhere ;  the  second  only  between 
certain  fractions  of  the  belligerent  arm- 
ies and  within  a  fixed  radius. 

Article  49 

An  armistice  must  be  officially  and 
without  delay  notified  to  the  competent 
authorities  and  to  the  troops.  Hostili- 
ties are  suspended  immediately  after  the 
notification. 

Article  50 

It  rests  with  the  contracting  parties  to 
settle,  in  the  terms  of  the  armistice, 
what  communications  may  be  held  be- 
tween the  populations. 


Article  51 

The  violation  of  the  armistice  by  one 
of  the  parties  gives  the  other  party  the 
right  of  denouncing  it. 


An  armistice  suspends  military  op- 
erations by  mutual  agreement,  between 
the  belligerent  parties.  If  its  duration 
is  not  defined,  the  belligerent  parties 
may  resume  operations  at  any  time,  pro- 
vided always  that  the  enemy  is  warned 
within  the  time  agreed  upon,  in  ac- 
cordance with  the  terms  of  the  armistice. 

Article 

The  armistice  may  be  general  or  lo- 
cal. The  first  suspends  the  military 
operations  of  the  belligerent  States 
everywhere ;  the  second  only  between 
certain  fractions  of  the  belligerent  arm- 
ies and  within  a  fixed  radius. 

Article 

An  armistice  must  be  officially  and 
without  delay  notified  to  the  competent 
authorities  and  to  the  troops.  Hostili- 
ties are  suspended  immediately  after  the 
notification  or  on  a  later  date  fixed. 

Article 

It  rests  with  the  contracting  parties 
to  settle,  in  the  terms  of  the  armistice, 
what  communications  may  be  held  with 
and  between  the  populations  on  the 
theater  of  war. 

Article 

Any  serious  violation  of  the  armistice 
by  one  of  the  parties  gives  the  other 
party  the  right  of  denouncing  it,  and 
even,  in  cases  of  urgency,  of  recom- 
mencing hostilities  immediately. 


578 


SECOND  COMMISSION: 


[146]  Article  52 

A  violation  of  the  terms  of  the 
armistice  by  individuals  acting  on  their 
own  initiative  only  entitles  the  injured 
party  to  demand  the  punishment  of  the 
offenders  or,  if  necessary,  compensation 
for  the  losses  sustained. 


SECOND  SUBCOMMISSION 

Article 

A  violation  of  the  terms  of  the  armis- 
tice by  individuals  acting  on  their  own 
initiative  only  entitles  the  injured  party 
to  demand  the  punishment  of  the  of- 
fenders, or,  if  necessary,  compensation 
for  the  losses  sustained. 


Interned  Belligerents  and  Wounded  Cared  for  by  Neutrals 


Article  53 

A  neutral  State  which  receives  on 
its  territory  troops  belonging  to  the  bel- 
ligerent armies  shall  intern  them,  as  far 
as  possible,  at  a  distance  from  the 
theater  of  war. 

It  may  keep  them  in  camps  and  even 
confine  them  in  fortresses  or  in  places 
set  apart  for  this  purpose. 

It  shall  decide  whether  officers  can  be 
left  at  liberty  on  giving  their  parole  not 
to  leave  the  neutral  territory  without 
permission. 

Article  54 

In  the  absence  of  a  special  conven- 
tion, the  neutral  State  shall  supply  the 
interned  with  the  food,  clothing,  and  re- 
lief required  by  humanity. 

At  the  conclusion  of  peace  the  ex- 
penses caused  by  the  internment  shall 
be  made  good. 

Article  55 

A  neutral  State  may  authorize  the 
passage  through  its  territory  of  the 
^younded  or  sick  belonging  to  the  bel- 
ligerent armies,  on  condition  that  the 
trains  bringing  them  shall  carry  neither 
personnel  nor  material  of  war. 

In  such  a  case,  the  neutral  State  is 
bound  to  take  whatever  measures  of 
safety  and  control  are  necessary  for  the 
purpose. 


Article  56 

The  Geneva  Convention  applies  to 
sick  and  wounded  interned  in  neutral 
territory. 


Article 

A  neutral  State  which  receives  on  its 
territory  troops  belonging  to  the  bel- 
ligerent armies  shall  intern  them,  as  far 
as  possible,  at  a  distance  from  the  thea- 
ter of  war. 

It  may  keep  them  in  camps  and  even 
confine  them  in  fortresses  or  in  places 
set  apart  for  this  purpose. 

It  shall  decide  whether  officers  can 
be  left  at  liberty  on  giving  their  parole 
not  to  leave  the  neutral  territory  with- 
out permission. 

Article 

In  the  absence  of  a  special  convention, 
the  neutral  State  shall  supply  the  in- 
terned with  the  food,  clothing,  and  re- 
lief required  by  humanity. 

At  the  conclusion  of  peace  the  ex- 
penses caused  by  the  internment  shall 
be  made  good. 

Article 

A  neutral  State  may  authorize  the 
passage  over  its  territory  of  the 
wounded  or  sick  belonging  to  the  bel- 
ligerent armies,  on  condition  that  the 
trains  bringing  them  shall  carry  neither 
personnel  nor  material  of  war.  In 
such  a  case,  the  neutral  State  is  bound 
to  take  whatever  measures  of  safety 
and  control  are  necessary  for  the  pur- 
pose. 

Once  the  sick  or  wounded  have  been 
admitted  into  the  neutral  territory,  they 
cannot  be  returned  to  any  other  than 
their  original  country. 

Article 

The  Geneva  Convention  applies  to 
sick  and  wounded  interned  in  neutral 
territory. 


PART   IV 

THIRD  COMMISSION 


[1] 

FIRST   MEETING 

MAY  23,   1899 


Mr.  Leon  Bourgeois  presiding. 

Mr.  Leon  Bourgeois,  who  was  appointed  president  at  the  first  meet- 
ing of  the  Conference,  takes  the  chair.  His  Excellency  Mr.  Staal,  President 
of  the  Conference,  their  Excellencies  Count  Nigra  and  Sir  Julian  Pauncefote, 
honorary  presidents  of  the  Third  Commission,  take  their  places  beside  him. 

The  President  expresses  his  gratitude  for  the  honor  that  has  been  done  him. 
It  is  not  without  emotion  that  he  undertakes  the  direction  of  the  work  of  this 
Commission  on  arbitration,  the  results  of  which  are  anxiously  awaited  by  the  civ- 
ilized world. 

He  would  have  preferred  to  see  in  this  place  of  honor  some  one  else,  who  had 
had  more  experience  and  who  bore  a  name  of  greater  distinction;  he  alludes  in 
particular  to  the  eminent  men  seated  beside  him.  He  assures  his  colleagues  of 
his  whole-hearted  devotion  to  the  task  in  hand. 

The  Third  Commission  has  this  good  fortune,  that  no  division  can  exist 
among  its  members  on  the  general  ideas  which  are  the  bases  of  its  work.  They 
are  assured  that  they  will  go  forth  together  in  the  same  direction,  along  the  same 
road. 

The  President's  duty  is  to  try  to  keep  them  pursuing  their  journey  together 
along  this  road  as  far  as  possible. 

The  President  again  recalls  that  the  Commission  is  bound  to  keep  its  delib- 
erations secret.  Minutes  will  be  drawn  up  in  manuscript  and  preserved  by  the 
bureau  of  the  Conference,  where  they  may  be  consulted.  An  analytical  sum- 
mary will  be  printed  and  sent  to  the  members  of  the  Commission,  who,  of  course, 
will  be  communicated  with,  before  publication,  in  regard  to  the  part  which  con- 
cerns them.  Since  questions  relating  to  arbitration  present  a  unified  character,  the 
President  thinks  that  there  is  no  need  of  dividing  the  Commission  into  sub- 
commissions. 

His  Excellency  Mr.  Eyschen,  having  learned  of  a  most  interesting  work  on 
arbitrations  by  Chevalier  Descamps,  begs  its  author  to  place  it  at  the  disposal 
of  the  Commission. 

Chevalier  Descamps  will  comply  with  this  request.  He  will  turn  over  to 
the  Commission  these  statistical  notes  concerning  arbitration,  in  which  he  has 
endeavored  to  collect,  together  with  all  the  compromis  clauses  contained  in  treaties 
concluded  between  the  countries  represented  at  the  Conference,  all  the  cases  of 
arbitration  that  have  been  tried.  He  will,  however,  require  a  little  time  in  order 
to  submit  to  the  first  delegates  the  proofs  of  these  notes  —  at  least  the  part  regard- 
ing compromis  clauses  —  that  they  may  be  able  to  check  up  the  data  with  refer- 
ence to  their  countries. 

581 


582  THIRD  COMMISSION 

[2]  The  Commission  decides  to  publish  ChevaHer  Descamps'  work  under  its 

auspices,  without,  however,  involving  his  responsibility. 

His  Excellency  Count  Nigra  makes  himself  the  spokesman  of  the  members 
present  in  expressing  their  gratitude  to  the  Government  of  Her  Majesty  the 
Queen  of  the  Netherlands  for  the  publication  of  Mr.  van  Daehne  van 
Varick,  entitled  "  Actes  et  documents  relatifs  an  programme  de  la  Conference  de 
la  Paix." 

As  the  work  of  the  Commission  is  of  special  interest  to  the  public.  Baron 
Bildt  expresses  the  wish  that  the  bureau  will  furnish  the  press  with  rather  full 
information. 

The  President  recalls  that  the  three  Commissions  cannot  adopt  different 
lines  of  conduct  in  their  reports  to  the  press.  It  is  within  the  province  of  the 
bureau  of  the  Conference,  acting  for  all  the  Commissions,  to  settle  this  question. 

His  Excellency  Count  Nigra  speaks  to  the  same  effect.  Messrs.  Martens, 
Descamps,  Zenil,  and  Okolicsanyi  are  of  the  opinion  that  there  are  serious 
objections  to  communications  to  the  press  regarding  the  status  of  the  Commis- 
sion's work. 

Jonkheer  van  Karnebeek  believes  that  the  work  of  the  Commissions  being 
of  a  preparatory  nature,  it  would  be  very  dangerous  to  make  it  known  to  the 
public. 

His  Excellency  Count  Nigra,  for  the  same  reason,  moves  the  previous 
question  against  the  motion  on  this  subject. 

Mr.  Asser  likewise  is  of  the  opinion  that  the  motion  is  beyond  the  compe- 
tence of  the  Commissions. 

In  view  of  these  observations,  Baron  Bildt  does  not  insist  upon  his  proposal's 
being  put  to  vote. 

The  President  having  recalled  that  the  Third  Commission  will  meet  again 
next  Friday  at  2  o'clock,  the  meeting  adjourns. 


SECOND   MEETING 

MAY  26,  1899 


Mr.  Leon  Bourgeois  presiding. 

The  minutes  of  the  preceding  meeting  are  read  and  adopted. 
The  President  reads  a  letter  from  his  Excellency  Mr.  Staal  accompanied 
by  two  documents  entitled : 

( 1 )  "  Outline  for  the  preparation  of  a  draft  convention  to  be  concluded  by  the 
Powers  participating  in  the  Hague  Conference." 

(2)  "  Draft  arbitral  code." 

In  turning  these  documents  over  to  the  Bureau,  the  President  thanks  the 
Imperial  Russian  Government  for  having  furnished  a  definite  basis  for  the  delib- 
erations of  the  Commission.  He  asks  permission  to  indicate  the  questions  which 
it  seems  to  him  should  be  examined  by  the  Commission  and  thus  to  outline  the  plan 
and  the  order  of  the  work  to  be  undertaken.  He  does  not  intend,  of  course,  to 
prejudge  the  solutions  of  any  of  the  questions,  nor  to  express  in  any  manner  his 
personal  ideas,  which  his  position  as  President  does  not  permit  him  to  voice 
at  this  time. 

It  is  proper,  says  he,  to  examine  first  of  all  the  general  principle  which  brings 
us  together. 

Do  we  all  agree,  following  the  expression  of  Mr.  Descamps,  to  try  to  estab- 
lish relations  between  nations  preferably  according  to  law,  and  to  regulate  them, 
in  case  of  dispute,  according  to  justice?  In  other  words,  is  it  more  desirable  to 
have  recourse  to  peaceful  means  rather  than  to  force  in  settling  disputes  between 
nations  ? 

If  we  all  agree  upon  this  general  principle,  we  shall  then  have  to  seek  means 
of  arriving  at  this  result. 

Failing  the  customary  channels  of  diplomacy,  which  can  assure  friendly 
agreement  directly,  we  shall  seek  means  for  friendly  agreement  indirectly  by  medi- 
ation.    That  might  constitute  the  first  chapter  of  our  discussions. 

Apart  from  mediation  and  by  means  still  peaceful,  but  in  this  instance  final, 

we  shall  have  to  examine  arbitral  procedure. 
[3]   In  the  case  of  recourse  to  arbitration  we  must  determine  and  enumerate  the 

cases  in  which  such  recourse  is  possible. 

We  shall  then  ask  ourselves  whether  there  are  cases  where  nations  can 
agree  in  advance  that  this  recourse  shall  be  obligatory. 

It  will  next  be  necessary  to  establish  in  advance  an  arbitral  procedure  accepted 
by  all.  On  all  these  points  we  can  take  the  Russian  project,  which  has  just  been 
distributed,  as  our  guide. 

The  cases  where  arbitration  is  conventionally  obligatory  or  optional  having 

583 


584  THIRD  COMMISSION 

been  established,  and  the  procedure  having  been  fixed,  what  means  shall  be  em- 
ployed to  make  the  practice  general? 

Will  it  be  preferable  to  proceed  by  extending  the  system  of  permanent  arbi- 
tration treaties  by  introducing  the  arbitration  clause  in  international  acts? 

Or,  on  the  contrary,  shall  there  be  established  a  permanent  international  insti- 
tution to  act: 

(1)  As  an  intermediary,  to  remind  the  parties  of  the  existence  of  the  con- 
ventions, of  the  possible  application  of  arbitration,  and  to  offer  to  set  the  pro- 
cedure in  motion ; 

(2)  As  a  means  of  conciliation  previous  to  any  judicial  discussion ; 

(3)  Finally,  as  a  court  in  the  form  of  an  international  tribunal. 

If  the  Commission  approves  this  suggestion,  the  order  of  our  discussions 
will  be  expedited.     (Assent.) 

Before  taking  up  the  examination  of  the  Russian  project,  the  President 
inquires  whether  any  other  members  of  the  Commission  have  similar  proposals 
to  make. 

His  Excellency  Sir  Julian  Pauncefote  reads  the  following  motion : 

Permit  me,  Mr.  President,  to  ask  you  before  going  deeper  into  the  matter, 
if  it  would  not  be  useful  and  opportune  to  sound  the  Commission  on  the  subject 
which  I  believe  to  be  the  most  important,  that  is,  the  establishment  of  a  perma- 
nent international  court  of  arbitration,  which  you  have  touched  upon  in  your 
remarks. 

Many  arbitration  codes  and  rules  of  procedure  have  been  made,  but  the 
procedure  has  up  to  the  present  time  been  regulated  by  the  arbitrators  or  by  gen- 
eral or  special  treaties. 

Now  it  seems  to  me  that  new  codes  and  rules  of  arbitration,  whatever  be 
their  merit,  do  not  greatly  advance  the  great  cause  which  brings  us  together. 

If  we  want  to  make  a  step  forward,  I  believe  that  it  is  absolutely  necessary 
to  organize  a  permanent  international  tribunal  which  may  be  able  to  assemble 
at  once  upon  the  request  of  the  disputing  nations.  This  principle  being  estab- 
lished, I  do  not  believe  that  we  shall  have  much  difficulty  in  agreeing  on  the 
details.  The  necessity  of  such  a  tribunal  and  the  advantages  which  it  would 
offer,  as  well  as  the  encouragement  and  even  inspiration  which  it  would  give 
to  the  cause  of  arbitration,  has  been  demonstrated  with  much  eloquence  and  force 
and  clearness,  by  our  distinguished  colleague,  Mr.  Descamps,  in  his  interesting 
essay  on  arbitration,  an  extract  from  which  is  included  in  the  acts  and  documents 
so  graciously  furnished  to  the  Conference  by  the  Netherland  Government. 
There  is  therefore  nothing  more  for  me  to  say  upon  this  subject,  and  I  shall  be 
grateful  to  you,  Mr.  President,  if  before  going  any  further,  you  consent  to 
receive  the  ideas  and  sentiments  of  the  Commission  upon  the  proposition  which 
I  have  the  honor  to  submit  concerning  the  establishment  of  a  permanent  inter- 
national court  of  arbitration. 

His  Excellency  Count  Nigra  says  that  he  will  be  grateful  to  Sir  Julian 
Pauncefote  if  he  will  not  insist  upon  the  place  which  he  desires  his  proposal 
to  have  in  the  general  order  of  the  work  of  the  Commission.  He  thinks  it  would 
be  preferable  to  follow  the  order  which  has  been  indicated  by  the  President 
and  to  take  up  the  examination  of  the  English  proposal  last  of  all,  as  it  looks 
as  if  it  would  encounter  certain  difficulties. 

His  Excellency  Mr.  Beernaert  supports  Count  Nigra's  point  of  view.     He 


SECOND  MEETING.  MAY  26.  1899  585 

remarks  that  the  proposal  so  happily  presented  by  Sir  Julian  Pauncefote  finds 
the  Commission  unprepared.  It  would  certainly  be  of  advantage  to  give  its 
members  time  to  examine  the  proposal  and,  if  need  be,  to  consult  their  respective 
Governments. 

The   same  observation   applies   to   his   Excellency   Mr.    Staal's   proposals. 

His  Excellency  Mr.  Beernaert  asks  v^hether  the  English  proposal  is  in 
writing. 

Sir  Julian  Pauncefote  replies  that  he  desired  merely  to  learn  the  sentiments 
of  the  Commission  on  the  principle;  he  reserves  the  right  to  formulate  later  a 
definite  proposal,  if  this  principle  is  adopted. 

He  does  not  insist  upon  immediate  discussion. 

The  President  states  that  two  proposals  have  been  filed  with  the  Bureau: 
(1)   the  Russian  project;  (2)  the  British  motion. 

It  would  seem  to  be  difficult  for  the  Commission  to  take  up  at  once  the  dis- 
cussion of  these  texts  and  he  proposes  that  they  be  subjected  to  a  preliminary 

examination  by  a  special  committee. 
[4]   Chevalier  Descamps  suggests  that  the  bureau  be  entrusted  with  the  designa- 
tion of  the  members  of  this  committee. 

The  President  asks  whether  the  Commission  does  not  think  that  it  ought 
to  make  these  appointments  itself. 

On  the  intervention  of  Count  Nigra,  it  is  decided  that  the  committee  of 
examination  shall  be  appointed  in  conformity  with  Chevalier  Descamps'  pro- 
posal. 

The  President  states  that  this  course  will  be  followed  and  that  the  bureau, 
consisting  of  the  honorary  presidents,  the  president,  and  vice-presidents,  will 
proceed  to  select  the  special  committeemen,  subject,  however,  to  confirmation 
by  the  Commission. 

Before  suspending  the  meeting,  the  President  asks  permission  to  state  a 
fact  which  seems  to  him  to  be  of  the  greatest  significance : 

The  assembly,  he  says,  has  seemed  to  be  unanimously  of  the  opinion  that 
it  is  better  to  have  recourse  to  peaceful  means  than  to  force  for  the  settlement  of 
differences  between  nations.  I  think  that  the  affirmation  of  this  idea,  which  is 
common  to  all,  defines  the  scope  of  this  meeting  and  permits  us  to  pass  ad- 
vantageously to  the  discussion  of  its  application.     (General  applause.) 

On  the  proposal  of  Chevalier  Descamps,  the  meeting  is  suspended  to  allow 
the  bureau  to  designate  the  members  of  the  committee  of  examination. 

On  the  resumption  of  the  meeting,  the  President  submits  the  following  list 
to  the  Commission:  Messrs.  Asser,  Descamps,  d'Estournelles,  Holes,  Lam- 
MASCH,  Martens,  Odier,  and  Zorn. 

After  an  exchange  of  views  by  several  of  the  members,  the  Commission  de- 
cides to  leave  it  to  the  President  to  call  the  next  meeting  on  one  of  the  days  set 
for  the  rotation  of  the  work. 

It  is  understood  that  Sir  Julian  Pauncefote's  motion  will  be  referred  to 
the  same  committee  of  examination,  as  well  as  all  other  proposals  of  the  same 
kind  that  may  be  presented. 

The  President  reads  a  communication  from  his  Excellency  Mr.  Staal, 
supplementing  the  Russian  proposal. 

This  document  will  be  printed  and  distributed  at  the  same  time  as  Sir  Julian 
Pauncefote's  motion  and  referred  to  the  committee  of  examination. 

The  meeting  adjourns. 


THIRD    MEETING 

JUNE  5,  1899 


Mr.  Leon  Bourgeois  presiding. 

The  President  takes  the  floor  and  speaks  as  follows : 

Gentlemen,  you  have  all  heard  that  a  terrible  misfortune  has  just  befallen 
one  of  the  most  distinguished  members  of  the  Conference. 

The  daughter  of  Dr.  Roth,  the  first  delegate  of  Switzerland,  has  been  killed 
in  a  railroad  accident,  and  the  circumstances  under  which  this  sad  event  occurred 
makes  the  sorrow  that  has  come  to  our  colleague  still  more  cruel. 

You  will  feel  that  it  is  impossible  to  proceed  with  your  customary  work 
before  expressing  your  sentiments  of  deep  and  sincere  condolence.  The  Presi- 
dent of  the  Conference  has  already  made  himself  the  spokesman  of  us  all  by 
sending  the  following  telegram  to  Dr.  Roth  : 

Sharing  most  sincerely  the  grief  that  has  come  to  you,  all  the  members 
of  the  Conference  desire  to  express  to  you  their  profound  sympathy  in  this 
cruel  bereavement. 

(Signed)     Staal, 
President  of  the  Conference. 

You  will  join  with  me  in  thanking  Mr.  Staal  for  having  already  expressed 
to  our  colleague  the  sympathetic  sentiments  which  we  all  feel.     {General  assent.) 

Mr.  Odier  thanks  the  members  of  the  Conference  in  the  name  of  Dr.  Roth 
for  their  expressions  of  sympathy  to  the  first  delegate  of  Switzerland  on  the 

occasion  of  his  affliction. 
[5]   The  minutes  of  the  meeting  of  May  26  are  read  and  approved. 

Mr.  Beldiman  asks  to  be  allowed  to  make  an  observation  in  reply  to  an 
appeal  to  the  discretion  of  the  members  of  the  Conference,  which  was  addressed 
to  them  by  one  of  the  secretaries  general.  A  certain  document  marked  "  secret," 
which  was  recently  distributed,  had  been  published  four  days  previously  in  the 
Times  and  reproduced  the  next  day  in  the  Cologne  Gazette.  It  was  the  Ameri- 
can project  relative  to  the  establishment  of  a  permanent  court  of  arbitration.  He 
desires  to  remark  that  under  these  circumstances  there  can  be  no  question  as  to 
the  discretion  of  the  members  of  the  Commission. 

The  President  officially  acknowledges  Mr.  Beldiman's  observation  and 
states  that  the  document  was  not  made  public  by  the  bureau. 

The  President  says  that  the  committee  of  examination  appointed  at  the  last 
meeting  has  been  organized  with  Chevalier  Descamps  as  its  president  and  Baron 
d'Estournelles  as  its  secretary.  It  has  held  several  meetings,  in  the  course  of 
which  it  has  examined  the  original  Russian  proposal  and  some  of  the  other  pro- 

586 


THIRD  MEETING,  JUNE  5,  1899  587 

posals  that  have  been  filed  with  its  bureau.  The  order  of  business  for  the  meet- 
ing indicates  the  questions  on  which  the  Commission  can  begin  its  discussions 
to-day.     They  are  the  following: 

Study  of  the  first  six  articles  of  the  Russian  project  (mediation  and  arbitra- 
tion) and  of  the  modifications  suggested  by  the  committee,  as  per  the  text  that 
has  been  distributed. 

Study  of  an  additional  article  proposed  by  Count  Nigra,  likewise  distributed. 

Study  of  a  supplementary  provision,  suggested  by  Mr.  Holls,  relative  to 
the  institution  of  special  mediation  (provision  also  distributed). 

The  President  gives  Chevalier  Descamps  the  floor,  in  order  that  he  may 
present  his  report  in  the  name  of  the  committee  of  examination. 

Chevalier  Descamps  makes  a  report  on  the  work  of  the  committee  of  exam- 
ination, in  so  far  as  good  offices  and  mediation  are  concerned. 

The  committee  has  drawn  its  inspiration  from  the  common  desire  of  the 
Powers  to  exhaust  all  the  available  means  of  pacific  settlement  before  consigning 
the  adjustment  of  diflferences  between  nations  to  the  clash  of  arms. 

Along  these  lines  the  members  of  the  committee  have  not  failed  to  show  a 
spirit  of  mutual  good-will  and  cordial  understanding.  This  spirit  has  assumed 
concrete  form  in  a  body  of  provisions,  unanimously  concurred  in  by  the  com- 
mittee, which  is  now  presented  to  the  Commission. 

The  committee  found  the  project  formulated  by  the  Russian  delegation  an 
excellent  basis  for  its  deliberations. 

It  has  introduced  a  number  of  important  improvements,  which  appear  in 
Articles  3,  7,  and  8  of  the  text  now  proposed. 

Article  1  is  the  basic  article  of  the  project.  It  declares  that  the  Powers 
have  agreed  to  use  their  best  efforts  to  settle  by  peaceful  means  differences  that 
may  arise  among  them.  There  will  doubtless  be  occasion,  when  the  work  of  the 
Commission  has  ended,  to  give  this  article  a  place  that  will  better  indicate  its 
general  bearing.  Article  2  and  those  following  relate  to  the  utilization  of  good 
offices  and  mediation. 

The  utilization  of  good  offices,  justifiable  in  itself,  is  not  an  innovation  in 
the  law  of  nations.  It  is  possible  and  seems  to  be  the  part  of  wisdom  to  give  it 
greater  precision  and  to  develop  it. 

The  Russian  project  rightly  makes  a  distinction  between  mediation  by  the 
parties  in  controversy  and  the  offer  of  mediation  by  third  parties,  strangers  to 
the  dispute. 

Recourse  to  mediation  has  given  rise  to  discussions  in  the  committee,  which 
have  borne  upon  two  points :  cases  in  which  such  recourse  is  proper  and  the 
mitigation  of  the  rule  for  such  recourse. 

On  the  first  point  the  committee  concurred  in  the  formula  presented  by  the 
Russian  delegation ;  on  the  second  point  the  committee  preferred  the  following 
formula :  "  unless  exceptional  circumstances  prevent." 

In  so  far  as  offers  of  mediation  are  concerned,  it  did  not  seem  to  be  possible 
to  make  them  obligatory ;  but  the  committee,  like  the  Russian  delegation,  con- 
sidered that  such  offers  should  be  recognized  as  being  in  the  nature  of  a  useful 
move  to  prevent  the  paralysis  of  good-will  and  to  safeguard  the  general  interests 
of  peace. 

His  Excellency  Count  Nigra  proposed  an  additional  provision,  stipulat- 
ing that  **  Powers,  strangers  to  the  dispute,  have  the  right  to  offer  good  offices  or 
mediation,  even  during  the  course  of  hostilities,"  and  declaring  that  "  the  exercise 


588  •  THIRD  COMMISSION 

of  this  right  can  never  be  regarded  as  an  unfriendly  act."     These  provisions  were 
accepted  by  the  committee. 

Article  4,  in  harmony  with  the  Russian  project,  defines  the  role  of  the  medi- 
ator and  sums  it  up  as  follows :     "  Conciliation  and  appeasement." 

Article  5  fixes  the  time  when  the  mediator's  functions  cease. 

That  is  when  it  is  stated  by  one  of  the  parties  at  variance  or  by  the  mediator 
himself  that  neither  compromise  nor  the  basis  of  a  friendly  agreement  is  ac- 
ceptable. 

Article  6  emphasizes  the  character  of  mediation,  namely,  "  friendly  advice," 

with  no  idea  of  obligation  or  constraint. 
[6]  Article  7,  proposed  by  his  Excellency  Count  Nigra,  determines  the  effects 

of  mediation  in  relation  to  war  preparations  or  the  military  operations  al- 
ready under  way,  according  as  the  mediation  takes  place  before  or  after  the  be- 
ginning of  hostilities.  The  purpose  of  this  provision  is  to  make  mediation  more 
readily  acceptable  by  not  requiring  the  suspension  of  war  preparations  or  war 
operations,  and  by  leaving  to  the  States  at  variance  the  option  of  stipulating  such 
suspension. 

Finally,  Article  8,  proposed  by  Mr.  Holls,  recommends  the  application  of 
special  mediation  when  circumstances  permit. 

This  form  of  mediation  is  based  upon  the  practical  observation  that  in  many 
cases  it  is  preferable  to  leave  the  discussion  of  the  points  at  issue  to  "  seconds  " 
selected  by  the  respective  interested  parties. 

It  has  the  merit  of  introducing  in  a  way  a  new  jurisdiction  into  the  procedure 
for  disputes  between  States. 

It  admits  of  a  period  during  which  the  contending  States  discontinue  all 
direct  communication  on  the  matter  in  dispute. 

Mr.  Holls  proposes,  moreover,  that  in  case  of  an  actual  rupture  of  peace- 
ful relations,  the  States  which  are  carrying  on  the  special  mediation  still  have 
the  mission  of  taking  advantage  of  every  opportunity  to  restore  peace. 

These  proposals  were  most  favorably  received  in  the  committee. 

All  the  provisions  constituting  the  eight  articles  now  submitted  to  the  Com- 
mission are  presented  with  the  unanimous  approval  of  the  members  of  the 
committee. 

Before  opening  the  discussion  on  the  text  of  the  articles  proposed,  the  Presi- 
dent recalls  that  this  is  the  first  reading ;  that  is  to  say,  it  is  merely  preparatory  in 
character,  but  it  permits  the  Commission  to  enter  at  once  into  collaboration  with 
the  committee. 

It  is  understood  that  each  delegate  may  reserve  the  right  to  make,  on  the 
second  reading,  any  observations  which  he  may  have  to  present. 

Mr.  Delyanni  says  that  the  Hellenic  Government,  which  he  has  informed  of 
the  various  proposals  submitted  to  the  Commission  concerning  recourse  to  good 
offices,  mediation,  and  arbitration,  has  not  yet  had  time  to  receive  his  communica- 
tion, study  the  questions,  and  send  him  instructions. 

Mr.  Delyanni  asks  permission  to  make  known  the  opinion  of  his  Govern- 
ment at  a  subsequent  meeting. 

His  Excellency  Turkhan  Pasha  makes  a  similar  observation  as  follows : 

It  is  of  course  understood  that  the  adoption  on  first  reading  of  the  project 
on  mediation  does  not  bind  the  Ottoman  delegation,  which  is  waiting  for  in- 
structions from  its  Government  before  declaring  itself  with  regard  to  each  of 
the  articles  forming  the  project. 


THIRD  MEETING,  JUNE  5,  1899  589 

The  President  informs  Messers.  Delyanni  and  Turkhan  Pasha  that  their 
declarations  will  be  placed  on  record. 

He  says  that  the  Commission  can  pass  forthwith  to  the  examination  of  the 
texts  and  he  reads  Article  1 : 

With  purpose  to  prevent,  as  far  as  possible,  recourse  to  force  in  international  relations, 
the  signatory  Powers  have  agreed  to  use  their  best  efforts  to  bring  about  by  pacific  means 
the  settlement  of  differences  which  may  arise  between  them. 

Count  de  Macedo,  referring  to  the  expression  "  the  nations "  used  by 
Chevalier  Descamps  in  his  exposition,  asks  whether  that  expression  should  not 
be  substituted  for  the  word  "  them,"  with  which  the  article  ends  and  which  would 
seem  to  limit  the  exercise  of  mediation  to  the  signatory  Powers  alone. 

Chevalier  Descamps  remarks  that  this  point  was  not  the  subject  of  special 
study  on  the  part  of  the  committee,  but  the  latter  is  perfectly  willing  to  consider 
it.  Count  DE  Macedo's  observation  will  be  particularly  timely  when  the  question 
whether  the  first  article  should  be  detached  and  placed  at  the  head  of  the  whole 
convention  comes  up  for  decision. 

The  President  says  that  Count  de  Macedo's  observation  has  been  carefully 
noted ;  it  may,  moreover,  apply  to  other  articles,  particularly  to  accession  clauses, 
which  appear  in  all  the  conventions  of  this  character. 

Mr.  Martens  remarks  that  a  distinction  must  be  made  between  legal  obliga- 
tion among  nations,  which  alone  is  of  a  contractual  character,  and  a  simple 
academic  vocn,  to  which  Article  1  would  be  reduced,  if  the  words  "  the  nations," 
were  substituted  for  "  them."  What  Mr.  Martens  wants  is  a  conventional  bond 
among  the  signatory  Powers. 

Mr.  Beldiman  asks  why  the  committee  has  substituted  the  word  "  differ- 
ences "  for  the  word  "  disputes,"  which  appeared  in  the  Russian  text.  Since 
Article  1  mentions  the  case  of  war,  the  word  "  disputes"  (conflits)  would  be  the 

more  proper  term. 
[7]  Chevalier  Descamps  points  out  that  the  committee  endeavored  to  find  the 

generic  term  which  would  cover  most  comprehensively  all  the  controversies 
which  it  is  a  question  of  settling  by  peaceful  means. 

His  Excellency  Mr.  Beernaert  concurs  in  the  committee's  wording. 

Mr.  Asser  remarks  that,  since  Article  1,  as  Mr.  Descamps  has  said,  is  of 
a  general  character,  the  word  "  differences,"  adopted  by  the  committee  of 
examination,  should  be  retained. 

The  President  sums  up  these  divers  observations,  stating  that  Article  1  is 
to  be  considered  as  a  general  preamble  and  that  obligations,  properly  so  called, 
begin  with  the  following  article.  He  declares  Article  1  adopted,  subject  to  these 
observations. 

Article  2  is  adopted  with  the  modification  made  by  the  committee  of  exam- 
ination.    It  reads  as  follows : 

Consequently  the  signatory  Powers  decide  that,  in  case  of  serious  disagreement  or  dis- 
pute, before  an  appeal  to  arms  they  will  have  recourse,  unless  exceptional  circumstances 
prevent,  to  the  good  offices  or  mediation  of  one  or  more  friendly  Powers. 

The  President  reads  Article  3  with  the  additional  paragraph  proposed  by 
Count  Nigra; 

Article  3 
Independently  of  this  recourse,  the  signatory  States  recommend  that  one  or  more  Pow- 


590  THIRD  COMMISSION 

ers,  strangers  to  the  dispute,  should,  on  their  own  initiative,  and  as  far  as  circumstances  may 
allow,  offer  their  good  offices  or  mediation  to  the  States  at  variance. 

Powers,  strangers  to  the  dispute,  have  the  right  to  offer  good  offices  or  mediation,  even 
during  the  course  of  hostilities. 

The  exercise  of  this  right  can  never  be  regarded  by  one  or  the  other  of  the  parties  in 
conflict  as  an  unfriendly  act. 

His  Excellency  Count  Nigra  asks  to  be  permitted  to  add  a  remark  to  the 
reporter's  very  accurate  exposition. 

When  we  speak  of  mediation,  the  question  arises  first  of  all  whether  Powers 
not  concerned  in  the  dispute  should  have  the  obligation  or  merely  the  right  of 
offering  their  services  as  mediators. 

If  there  were  a  chance  of  this  principle's  being  admitted  by  the  Conference, 
the  Italian  Government,  for  its  part,  would  have  no  objection  to  accepting  it. 

But  inasmuch  as  this  chance  is  remote,  it  is  necessary  for  the  Conference  to 
declare  clearly,  in  order  to  encourage  third  Powers  to  offer  their  mediation,  that 
the  exercise  of  this  right  has  nothing  about  it  that  can  be  construed  as  an  un- 
friendly act.  Such  is  the  aim  of  the  amendment,  whose  political  bearing  can- 
not be  disputed. 

Mr,  d'Ornellas  Vasconcellos  asks  whether  this  amendment  does  not  dupli- 
cate Article  6. 

The  President  explains  that  the  word  "  friendly  "  (amical)  has  a  different 
meaning  in  the  two  articles. 

In  Article  3  it  is  a  question  of  protecting  the  mediating  Power  from  any 
false  interpretation  of  its  intervention  by  defining  its  friendly  character. 

Article  6,  on  the  contrary,  refers  to  the  character  of  the  act  of  mediation 
itself,  which,  unlike  arbitration  —  which  latter  determines  the  rights  of  the  par- 
ties—  is  only  friendly  advice  given  in  a  kindly  spirit. 

Article  3  is  adopted. 

Articles  4,  5,  and  6  are  also  adopted  in  the  following  form: 

Article  4 

The  part  of  the  mediator  consists  in  the  reconciliation  of  the  opposing  claims  and  in 
appeasing  the  feelings  of  resentment  which  may  have  arisen  between  the  States  in  dispute. 

Article  5 

The  functions  of  the  mediator  are  at  an  end  when  once  it  is  declared,  either  by  one  of 
the  parties  to  the  dispute,  or  by  the  mediator  himself,  that  the  settlement  or  the  bases  of  a 
friendly  settlement  proposed  by  him  are  not  accepted. 

Article  6 

Good  offices  and  mediation,  undertaken  either  at  the  recourse  of  the  litigant  parties,  or 
on  the  initiative  of  Powers  strangers  to  the  dispute  have  exclusively  the  character  of  friendly 
advice. 

Article  7  is  read : 

Article  7 

The  acceptance  of  mediation  cannot,  unless  there  be  an  agreement  to  the  contrary, 
have  the  effect  of  interrupting,  delaying,  or  hindering  mobilization  or  other  measures  of 

preparation  for  war. 
[8]    If  it  takes  place  after  the  commencement  of  hostilities,  the  military  operations  in  prog- 
ress are  not  interrupted  unless  there  be  an  agreement  to  the  contrary. 


THIRD  MEETING,  JUNE  5,  1899  591 

His  Excellency  Count  Nigra  states  that  it  is  important  that  the  purpose  of 
this  article  be  thoroughly  understood. 

When  mediation  takes  place,  the  conditions  are  generally  regulated  by  spe- 
cial stipulations  either  by  means  of  an  actual  convention  or  by  means  of  an  ex- 
change of  notes,  or  in  some  other  form. 

Consequently  there  will  seldom  be  occasion  to  apply  this  article.  It  might 
even  have  been  omitted  without  disadvantage. 

Nevertheless,  as  there  is  no  doubt  that  several  of  the  great  Powers  would 
not  have  consented  to  adopt  the  principle  without  this  reservation,  Count  Nigra 
deemed  it  advisable  to  formulate  it  as  it  is  submitted  to  the  Commission,  in  order 
to  make  the  acceptance  of  mediation  possible  and  easier. 

Perhaps  there  might  have  been  some  thought  of  inverting  the  terms  and 
declaring  that  interruption  of  mobilization  and  other  preparatory  measures  would 
have  been  the  normal  and  immediate  consequence  of  the  acceptance  of  media- 
tion, unless  there  were  a  convention  to  the  contrary.  He  does  not,  however,  be- 
lieve that  the  principal  Powers  would  accept  this  formula,  which  Italy,  in  so  far 
as  she  is  concerned,  would  be  disposed  to  support. 

The  article  as  proposed  to  the  Commission,  far  from  having  a  restrictive 
character,  tends,  as  has  been  said,  to  facilitate  recourse  to  mediation. 

Mr.  Beldiman  asks  why  the  committee  of  examination  has  deleted  the 
words  "in  progress"  (en  cours),  which  appear  in  Article  7  after  "military 
operations." 

Chevalier  Descamps  explains  that  it  has  been  necessary  to  consider  two  dis- 
tinct hypotheses : 

(1)  Where  mediation  takes  place  before  the  declaration  of  war,  in  which 
case  it  will  not  prevent  preparatory  measures ; 

(2)  Where  mediation  takes  place  after  the  outbreak  of  hostilities,  in  which 
case  military  oper^ations  in  progress  will' not  be  suspended. 

Article  7  is  adopted. 

Article  8  (Mr.  Holls'  proposal)  is  read: 

Article  8 

The  signatory  Powers  are  agreed  in  recommending  the  application,  when  circumstances 
allow,  of  special  mediation  in  the  following  form : 

In  case  of  a  serious  difference  threatening  the  peace,  the  States  in  dispute  choose  re- 
spectively a  Power  to  which  they  entrust  the  mission  of  entering  into  direct  communication 
with  the  Power  chosen  on  the  other  side,  with  the  object  of  preventing  the  rupture  of  pacific 
relations. 

For  the  period  of  their  mandate  which,  unless  there  is  a  contrary  provision,  cannot 
exceed  thirty  days,  the  question  in  dispute  is  regarded  as  referred  exclusively  to  these 
Powers.    They  must  use  their  best  efforts  to  settle  the  difficulty. 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are  charged  with  the 
joint  task  of  taking  advantage  of  any  opportunity  to  restore  peace. 

On  the  proposal  of  his  Excellency  Mr,  Beernaert,  it  is  decided  to  omit  the 
word  "  tombees "  in  the  first  paragraph  and  to  substitute  "  qui  le  permettent " 
for  "qui  peuvent  le  permettre"  in  the  same  paragraph. 

In  reply  to  an  observation  by  Mr.  d'Ornellas  Vasconcellos  relative  to  the 
last  paragraph  of  Article  8,  Chevalier  Descamps  says  that  it  would  perhaps  have 
been  better  to  word  it  differently,  for  instance,  that  "  the  two  Powers  shall  cease 
to  communicate  directly  with  each  other  with  regard  to  the  matter  in  dispute." 


592  THIRD  COMMISSION 

The  committee  of  examination  reserves  the  right  to  propose  a  new  wording  on 
this  point. 

Mr.  Martens  draws  attention  to  the  important  distinction  that  must  be  made 
between  Article  8  and  the  seven  remaining  articles. 

In  the  first  seven  articles  the  Powers  agree  to  accept  a  certain  procedure; 
in  the  eighth  they  agree  to  recommend  a  method  of  procedure.  He  thinks  that 
this  distinction  detracts  from  the  importance  of  the  questions  regarding  the  word- 
ing of  Article  8. 

Article  8  is  adopted. 

The  President  thanks  Chevalier  Descamps,  on  behalf  of  the  Commission, 
for  the  useful  and  interesting  way  in  which  he  has  set  forth  the  general  state- 
ment of  mediation  and  arbitration  clauses  concerning  the  Powers  represented  at 
the  Conference  in  the  work  which  has  been  distributed  in  proof. 

His  Excellency  Count  Nigra  makes  a  special  point  of  joining  in  these 
thanks. 

The  President  adjourns  the  meeting,  stating  that  the  Commission  will  be 
convoked  at  a  later  date  through  the  bureau. 


[9] 

FOURTH   MEETING 

JULY  7,  1899 


Mr.  Leon  Bourgeois  presiding. 

The  minutes  of  the  meeting  of  June  5  are  adopted,  subject  to  a  correction 
requested  by  Mr.  Beldiman,  which  will  be  taken  into  account. 

Mr.  Delyanni,  delegate  of  Greece,  says  that  he  has  received  from  his  Gov- 
ernment instructions  which  will  permit  him  to  withdraw  the  reservation  that  he 
had  made  at  the  preceding  meeting,  at  the  time  of  the  vote  on  the  proposals  rela- 
tive to  good  offices  and  mediation,  and  he  states  that  he  is  authorized  to  adhere 
to  these  proposals. 

Mr.  Delyanni  is  informed  that  his  declaration  will  be  put  on  record. 

The  President  says  that  the  late  date  at  which  the  Commission  has  been 
convoked  is  to  be  explained  by  the  amount  of  work  which  the  committee  of  ex- 
amination had  to  accomplish.  The  Commission  can  judge  how  considerable  that 
work  was  by  examining  the  56  articles  relating  to  good  offices  and  mediation,  in- 
ternational commissions  of  inquiry,  and  arbitration,  the  text  of  which  has  been 
unanimously  adopted  by  the  committee. 

He  adds  that  the  present  meeting  will  therefore  be  devoted  solely  to  hearing 
the  explanatory  statement  which  Chevalier  Descamps,  reporter  of  the  committee, 
has  been  good  enough  to  draw  up  with  regard  to  the  proposed  provisions.  No 
discussion  will  be  opened  and  no  action  taken.  It  will  be  nothing  more  than  a 
first  preparatory  reading,  which  in  no  way  prejudges  the  resolutions  of  the 
delegates. 

The  President  remarks  further  that  in  the  draft  Convention  that  has  been 
distributed  three  articles  have  been  omitted  by  mistake.  New  copies  of  the 
completed  draft  will  be  printed  and  distributed  among  the  members  of  the  Com- 
mission. 

Chevalier  Descamps  makes  the  following  report  on  the  work  of  the  com- 
mittee of  examination : 

The  committee  of  examination  on  questions  relating  to  mediation  and  arbi- 
tration has  entrusted  me  with  the  duty  of  laying  before  this  preliminary  meeting 
of  the  Commission  a  general  exposition  of  the  provisions  contained  in  the  second 
part  of  the  draft  Convention  for  the  peaceful  settlement  of  international  dis- 
putes. 

Before  I  take  up  this  task,  allow  me  to  revert  for  a  moment  to  the  first 
part  of  this  draft,  to  point  out  certain  modifications  adopted  by  the  committee 
as  a  result  of  the  exchange  of  views  which  took  place  at  the  last  meeting  of 
the  Commission. 

With  regard  to  Article  1,  the  committee,  concurring  in  the  observation  of 
Count  DE  Macedo,  considered  that  it  would  be  of  great  advantage  to  give  the 
widest  scope  to  the  provision  by  which  the  Powers  agree  to  use  their  best  efforts 

593 


594  THIRD  COMMISSION 

to  insure  the  maintenance  of  the  general  peace.     The  new  reading  is  based  upon 
this  idea. 

In  Article  2  the  engagement  to  have  recourse  to  mediation  had  been  tem- 
pered by  the  following  reservation :  "  unless  exceptional  circumstances  prevent." 
On  the  proposal  of  his  Excellency  Sir  Julian  Pauncefote  and  in  order  to  avoid 
certain  practical  difficulties  jn  the  application  of  a  new  rule,  the  committee  agreed 
to  the  following  formula  1  "as  far  as  circumstances  allow."  This  formula 
is  close  to  that  of  the  original  text  proposed  by  the  Russian  delegation. 

The  conclusion  of  Article  6  reads  as  follows :  "  Good  offices  and  media- 
tion .  .  .  have  exclusively  the  character  of  advice,  and  never  have  binding  force." 
This  formula  is  still  imperfect,  it  is  true.  It  is  not  different  in  meaning  from  the 
formula  previously  accepted.  The  committee  has  stricken  out  the  word 
"  friendly  "  before  the  word  "  advice,"  in  order  to  avoid  the  confusion  that  there 
seemed  to  be  between  the  terms  of  Article  6  and  those  of  the  final  paragraph  of 
Article  3,  where  it  is  stated  that  "  the  exercise  of  the  right  to  offer  good  offices 
and  mediation  can  never  be  regarded  by  either  of  the  parties  in  dispute  as  an  un- 
friendly act." 

Finally,  in  Article  8,  the  committee  considered  that  it  was  necessary  to  take 
into  account  the  observation  made  by  Mr.  d'Ornellas  and  to  adopt  the  following 
reading  for  paragraph  3 :  "  The  States  in  dispute  cease  from  all  direct  communi- 
cation on  the  subject  of  the  dispute,  which  is  regarded  as  referred  exclusively 
to  the  mediating  Powers,  who  must  use  their  best  efforts  to  settle  it." 

Before  hearing  the  general  exposition  which  the  committee  of  examination 
has  charged  me  to  make,  it  may  be  agreeable  to  the  Commission  to  learn  whether 
the  explanations  which  have  just  been  presented  answer  the  observations  made 

at  our  last  meeting. 
'[10]   Mr.   d'Ornellas  Vasconcellos,   having  no  knowledge  of  the  modification 
introduced  in  Article  8,  to  take  into  account  his  observation  on  the  scope 
of  the  word  "  exclusively,"  hopes  that  this  article  will  be  worded  in  conformity 
with  the  declaration  just  made  by  the  distinguished  reporter. 

The  President  states  that  there  can  be  no  doubt  as  to  the  interpretation  of 
the  text,  and  on  the  second  reading  this  interpretation  will  be  still  further  con- 
firmed, if  it  is  deemed  necessary. 

Chevalier  Descamps  confirms  the  President's  statement  and  then  begins 
the  general  exposition  of  the  provisions  contained  in  the  second  part  of  the  draft 
Convention  submitted  to  the  Commission. 

The  first  question  which  calls  for  the  attention  of  the  Commission,  after  that 
of  mediation,  is  the  question  of  international  commissions  of  inquiry. 

The  institution  of  international  commissions  of  inquiry  is  not  an  innova- 
tion in  the  law  of  nations.  It  has  rendered  important  services  in  the  past ;  it  may 
render  still  greater  services  in  the  future. 

Disputes  sometimes  arise  between  States  with  regard  to  facts  that  may  at 
a  given  moment  over-excite  public  opinion  and  even  lead  it  completely  astray. 
Two  things  would  then  seem  to  be  necessary.  The  true  facts  must  be  ascer- 
tained in  good  faith,  so  as  to  prevent  this  misleading  of  public  opinion.  We 
must  also  gain  time  with  a  view  to  calming  the  popular  mind.  International 
commissions  of  inquiry  exactly  answer  this  twofold  requirement. 

As  their  name  implies,  it  is  not  the  duty  of  these  commissions  to  make  deci- 
sions. Their  only  mission  is  to  make  a  report  stating  the  facts  accurately  and 
completely. 


FOURTH  MEETING,  JULY  7,  1899  595 

The  Russian  project  proposed  that  the  institution  of  international  com- 
missions of  inquiry  be  made  obligatory,  provided  that  neither  the  honor  nor 
vital  interests  of  the  interested  Powers  were  involved  in  the  controversy.  Even 
with  this  limitation,  the  principle  of  obligatory  recourse  seemed  to  be  too  ab- 
solute in  character.  On  the  other  hand,  it  did  not  appear  to  be  possible  to  con- 
fine ourselves  to  a  simple  recommendation  of  the  institution  of  commissions  of 
inquiry,  as  was  proposed  by  Mr.  Lammasch,  delegate  of  Austria-Hungary. 
Finally,  the  committee  concurred  in  a  compromise  proposal  containing  the  agree- 
ment to  have  recourse  to  these  commissions,  *'  as  far  as  circumstances  allow." 

This  reservation  was  not  accepted  without  some  feeling  of  regret  on  the 
part  of  several  of  the  members,  who  pointed  out  that,  since  a  restriction  regard- 
ing vital  interests  and  national  honor  already  figured  in  the  proposed  provision, 
the  grafting  of  a  second  reservation  upon  the  first  would  appear  to  be  unneces- 
sary and  difficult  to  explain. 

However  that  may  be,  the  institution  of  international  commissions  of  in- 
quiry, accepted  to  this  extent,  was  unanimously  regarded  by  the  committee  as 
an  important  pledge  of  pacification  and  as  a  valuable  aid  to  States  that  wish  in 
good  faith  to  throw  light  upon  facts,  the  knowledge  of  which  may  contribute  to 
the  maintenance  of  friendly  relations. 

In  order  that  the  institution  may  produce  such  results,  it  is  important  that 
the  appointment  of  the  members  of  the  international  commissions  of  inquiry  be 
made  at  once,  in  accordance  with  rules  facilitating  their  constitution.  A  special 
article  stipulates  that  the  members  shall  be  appointed,  unless  there  be  a  conven- 
tion to  the  contrary,  in  conformity  with  the  general  rule  wisely  established  in 
Article  31  of  the  present  act  for  the  formation  of  arbitration  tribunals. 

After  the  filing  of  the  report  of  the  international  commission  of  inquiry,  the 
interested  States  remain  free  either  to  conclude  a  friendly  arrangement  on  the 
basis  of  the  report  on  file,  or  to  have  recourse  to  some  form  of  mediation,  or  to 
/^bmit  their  dispute  to  arbitration. 

/  We  are  now  coming  to  the  important  chapter  of  the  committee's  delibera- 

tions, that  on  international  arbitration. 

Arbitration  belongs  above  all  else  to  the  organic  institutions  of  legal  peace 
among  the  States. 

International  arbitration  has  been  tested ;  it  has  penetrated  further  and  fur- 
ther into  international  practice.  It  has  won  favor  with  all  at  the  present  time. 
The  most  promising  future  lies  before  it.  The  time  seems  to  have  come  to  give  it, 
with  broadened  scope  and  a  stronger  organization,  the  place  assigned  to  it  in  the 
law  of  nations  by  the  progress  in  international  relations  and  the  juridical  con- 
science of  civilized  peoples. 

The  questions  included  in  the  general  problem  of  arbitration  are  many.  The 
order  to  be  followed  in  examining  these  questions  had  been  pointed  out  to  us  by 
our  President  at  the  very  beginning  of  our  meetings.  We  have  followed  that 
order. 

We  have  examined  in  turn  all  the  questions  connected  with  arbitral  justice 
and  the  differences  which  fall  within  its  jurisdiction,  the  organization  of  arbitral 
jurisdictions,  and  the  institution  of  a  permanent  court  of  arbitration,  and,  finally, 

arbitral  procedure. 
[11]  The  sanction  of  the  principle  of  arbitral  justice  was  received  with  marked 
favor  by  all  the  members  of  the  committee. 

Arbitral  justice  does  not  present  the  same  characteristics  in  international  law 


596  THIRD  COMMISSION 

as  it  does  in  municipal  law.  In  the  latter  branch  of  the  law  it  appears  as  a  sort 
of  derogation  from  the  public  organization  of  jurisdictions.  In  international  law 
it  provides  for  the  absence  of  all  jurisdiction  and  tends  directly  to  prevent  re- 
course to  force. 

Arbitral  justice  is  not  an  unconsidered  abdication;  it  is,  on  the  contrary,  an 
enlightened  utilization  of  the  sovereignty  of  States.  It  offers  itself  to  us  as  the 
procedure  that  is  most  in  conformity  with  reason,  humanity,  and  the  true  interests 
of  the  parties,  in  so  far  as  these  last  seek  only  a  legal  determination,  by  the  least 
hazardous  means,  of  what  is  their  right  according  to  law. 

The  Russian  project  proposed  that  it  be  declared  that  arbitration  is  indeed 
the  most  efficacious  and  equitable  means  of  settling  disputes  of  a  legal  nature  be- 
tween States.  The  committee  was  unanimous  in  maintaining  this  fundamental 
provision,  to  be  applied  to  cases  in  which  ordinary  diplomatic  relations  have  not 
settled  the  difference. 

It  is  important  to  define  the  scope  of  this  point. 

States  have  never  considered  that  arbitration  is  applicable  indiscriminately 
to  all  the  differences  that  may  arise  among  them.  There  are  controversies  which 
seem  to  be  exempt  from  arbitral  justice,  because  the  contentions  of  the  parties 
cannot  be  formulated  in  a  legal  manner.  Many  political  differences  are  of  this 
character. 

Even  in  the  province  of  law,  States  —  the  majority  of  them  at  any  rate  — 
do  not  consider  that  arbitration  is  applicable  forthwith  to  every  dispute  of  a  legal 
nature.  There  are  disputes  affecting  rights  of  so  superior  an  order  that  the 
Powers  do  not  consider  themselves  authorized  to  submit  them  to  arbitral  justice. 
The  formula  covering  these  excepted  cases  may  vary.  "  Independence 
and  autonomy,"  says  the  Hollando-Portuguese  declaration  of  July  5,  1894;  **  Vital 
interests  and  national  honor,"  says  the  Russian  project  which  was  submitted  to  us. 
Whatever  criticisms  may  be  made  of  the  latter  formula,  the  favor  which  it 
seems  to  have  met  with  on  the  part  of  several  of  the  States,  whose  cooperation  in 
this  direction  appeared  to  be  particularly  desirable,  determined  the  committee  to 
support  it. 

Differences  of  a  non-legal  nature  and  differences  of  a  legal  nature  affecting 
vital  interests  or  national  honor  being  reserved,  an  important  question  presented 
itself :  Is  it  possible  to  sanction  the  rule  of  obligatory  arbitration  for  all  other 
disputes  ? 

There  exist  general  arbitration  treaties  recently  concluded  by  various  States, 
which  contain  the  single  reservation  we  have  indicated,  or  which  contain  no 
reservation  whatever.  The  Italo-Argentine  treaty  of  July  23,  1898,  is  a  treaty 
of  this  character.  Several  other  international  instruments  of  like  nature  have 
been  negotiated  within  recent  years. 

The  Russian  project  did  not  go  as  far  as  that.  It  confined  itself  to  recog- 
nizing obligatory  arbitration  for  a  certain  series  of  disputes  specifically  deter- 
mined, recommending  arbitration  for  all  other  controversies,  but  leaving  recourse 
thereto  optional. 

This  system  necessarily  involved  the  enumeration  of  the  cases  subject  to 
obligatory  arbitration.  The  Russian  project  grouped  them  in  two  extensive  cate- 
gories: controversies  relating  to  pecuniary  claims  for  unlawful  injuries  and  con- 
troversies relating  to  the  interpretation  or  application  of  certain  conventions, 
mainly  conventions  known  as  universal  unions. 

The  committee  was  at  first  in  favor  of  this  system  and  studied  in  detail  the 


FOURTH  MEETING,  JULY  7,  1899  597 

cases  for  obligatory  arbitration  enumerated  in  the  Russian  project,  withdrawing 
some,  restricting  the  scope  of  others,  making  a  very  few  additions,  and  remaining, 
on  the  whole,  within  the  broad  lines  laid  down  in  the  original  text. 

As  the  discussion  proceeded,  it  became  apparent  to  the  committee  that  it  was 
impossible  to  reach  a  unanimous  agreement  on  this  subject.  Germany  did  not 
feel  that  she  could  consent  to  agree  in  advance  by  a  general  treaty  to  new  cases 
that  should  be  subject  to  obligatory  arbitration. 

Under  these  conditions  and  with  the  reservation  of  all  opinions,  the  committee 
finally  decided  upon  a  provision  bearing  upon  two  points : 

On  the  one  hand,  calling  attention  to  all  general  and  special  arbitration 
treaties,  which  already  contain  the  obligation  for  the  signatory  States  to  have 
recourse  to  arbitration.  This  obligation  is  in  a  measure  imposed  upon  all  States, 
particularly  in  so  far  as  a  number  of  treaties  of  a  general  character,  such  as  the 
Universal  Postal  Union,  are  concerned. 

On  the  other  hand,  a  declaration  by  which  the  signatory  States  expressly 
reserve  the  right  to  conclude,  either  before  the  ratification  of  the  present  act  or 
later  on,  new  agreements,  either  general  or  special,  with  a  view  to  developing 
obligatory  arbitration  to  the  greatest  extent  that  they  judge  possible. 

The  adoption  of  this  provision,  which  circumstances  have  rendered  neces- 
[12]   sary,  imposes  sacrifices  upon  States  that  are  disposed  to  take  an  important, 
though  prudent,  step  along  the  road  proposed  by  the  Russian  delegation. 
It  is  proper  to  remark,  however,  that  it  leaves  the  way  open  for  good-will. 

On  another  point  of  important  bearing  the  committee's  efforts  brought 
about  a  happier  result.  It  succeeded  in  obtaining  unanimous  cooperation,  in  so  far 
as  the  sanction  and  development  of  a  permanent  court  of  arbitration  are  con- 
cerned, whose  character  we  are  now  about  to  determine  and  whose  fundamental 
structure  we  shall  endeavor  to  elucidate. 

The  presentation  by  three  of  the  largest  States  in  the  world  of  three  projects 
concerning  the  institution  of  a  permanent  court  of  arbitration  is  undoubtedly 
one  of  the  most  important  facts  that  have  characterized  the  meeting  of  this 
Conference. 

With  these  three  proposals  before  it  the  committee  took  up  the  examination 
of  them  on  the  basis  of  the  project  presented  by  Sir  Julian  Pauncefote,  whose 
memorable  initiative  at  the  very  outset  of  our  labors  has  not  been  forgotten  by 
the  Commission.  The  very  kindly  manner  in  which  the  first  delegate  of  Great 
Britain  was  good  enough  to  refer  to  the  "  Memorandum  to  the  Powers  on  the 
organization  of  international  arbitration  "  stirred  in  the  heart  of  the  author  of 
this  Memorandum  a  feeling  of  gratitude  which  he  cannot  refrain  from  expressing 
here. 

The  graciousness  of  our  colleagues  from  Russia  and  from  the  United  States, 
who  were  so  obliging  as  to  present  in  the  form  of  amendments  the  provisions  of 
their  respective  projects,  which  they  were  disposed  to  maintain  in  the  face  of 
the  English  project,  greatly  contributed  to  facilitate  the  committee's  task. 

Under  these  conditions,  our  general  exposition  may  be  confined  to  pointing  out 
the  main  differences  between  the  original  project  of  Sir  Julian  Pauncefote 
and  the  provisions  decided  upon  by  common  agreement  in  the  committee.  Here 
are  the  points  which  should  be  brought  out : 

The  first  is  the  name  of  the  new  institution.  The  committee  concurred  in 
the   designation    "  Permanent   Court   of   Arbitration."     The   expression   "  Per- 


598  THIRD  COMMISSION 

manent  Court  of  Arbitrators  "  was  proposed  by  Dr.  Zorn,  delegate  of  Ger- 
many. He  was  finally  willing,  in  agreement  with  all  his  colleagues,  to  adopt 
the  definitive  appellation  ''  Permanent  Court  of  Arbitration."  This  title  can- 
not but  raise  the  character  of  the  institution  which  we  are  endeavoring  to  found. 

The  second  point  that  it  is  important  to  note  is  the  general  competence  of 
the  Court  to  try  all  cases  of  arbitration  without  prejudice  to  the  freedom  of 
the  States  to  constitute,  if  they  so  desire,  other  special  courts.  We  understand 
that  we  are  creating  "  a  free  tribunal  amidst  independent  States."  This  point 
of  view  was  not  foreign  to  the  English  project,  but  it  was  accentuated  in  an  addi- 
tional article  presented  by  the  Russian  delegation. 

Another  point  to  which  it  is  important  to  call  attention  concerns  the  num- 
ber of  arbitrators  to  be  designated  by  the  States.  Sir  Julian  Pauncefote's 
project  fixed  this  number  at  two.  There  was  no  question  of  establishing  inequali- 
ties among  the  States  from  this  point  of  view,  but  the  delegate  of  Germany  pro- 
posed that  the  number  of  arbitrators  be  raised  to  four,  in  order  to  give  greater 
latitude  to  the  States  that  might  wish  to  have  various  kinds  of  ability  represented 
by  the  arbitrators  selected  by  them.  It  is,  moreover,  understood  that  several 
of  the  States  may,  if  they  so  desire,  agree  upon  a  common  choice  and  that  the 
same  persons  may  be  chosen  as  arbitrator  by  different  States. 

The  term  of  office  of  a  member  of  the  Court  has  been  fixed  at  six  years, 
but  the  terms  of  arbitrators  previously  designated  may  be  renewed.  These  pro- 
visions have  been  borrowed  to  a  great  extent  from  the  project  formulated  by  the 
Interparliamentary  Conference  at  Brussels. 

The  American  delegation  would  have  preferred  to  have  the  arbitrators 
selected  by  the  highest  court  of  justice  in  each  State.  In  support  of  this  sug- 
gestion, it  argued  the  necessity  of  keeping  the  members  of  the  Court  free  from 
the  vicissitudes  of  political  influence.  The  committee  did  not  consider  it  possible 
to  comply  entirely  with  this  motion.  It  was  observed  that  the  States  were  or- 
ganized in  somewhat  different  ways  from  a  judicial  point  of  view.  Besides,  it 
was  thought  that  the  Governments  would  not  be  willing  to  renounce  in  a  general 
way  the  right  of  designating  the  arbitrators  themselves.  The  committee  recog- 
nizes that  it  is  necessary  for  the  States  to  base  the  selections  which  they  will  have 
to  make  upon  principles  of  the  utmost  impartiality. 

The  seat  of  the  International  Bureau,  the  institution  of  which  was  proposed 
by  Sir  Julian  Pauncefote,  has  been  fixed  at  The  Hague  by  common  agreement, 
and  various  measures  have  been  adopted  with  a  view  to  making  this  city  the 
headquarters  of  all  arbitral  courts.  A  just  tribute  to  the  Government  of  the 
Netherlands  and  the  Netherland  people. 

For  the  administrative  council  originally  provided  for,  there  has  been  sub- 
stituted a  Permanent  Council  composed  of  the  diplomatic  representatives  of  the 
signatory  States  residing  at  The  Hague,  with  the  Minister  of  Foreign  Affairs  of 
the  Netherlands  as  its  President.  This  modification  was  made  in  the  original 
project  on  the  initiative  of  the  author  of  the  project  himself,  Sir  Julian 
Pauncefote.  The  innovation  seems  to  be  as  happy  as  it  is  important.  It  is  cal- 
culated to  give  still  greater  stability  to  the  structure  that  we  desire  to  erect  and  to 
increase  its  prestige. 

Let  us  call  attention,  in  this  connection,  to  the  provision  granting  the  mem- 
bers of  the  Court  diplomatic  privileges  and  immunities  during  the  performance  of 

their  duties. 
[13]  Certain  measures  to  be  taken  in  the  matter  of  the  communication  of  the 


FOURTH  MEETING,  JULY  7,  1899  599 

documents  of  which  the  registry  is  to  be  custodian  have  been  extolled  by 
the  delegates  of  the  United  States  of  America.  The  committee  considered  that  it 
was  possible  to  satisfy  this  desideratum,  without  inserting  a  special  text  in  the 
act,  by  a  reference  to  the  general  powers  of  the  International  Bureau.  It  is, 
however,  important  to  take  into  account  the  right  of  the  States  with  regard  to 
the  communication  of  documents  relative  to  the  cases  in  which  they  have  in- 
tervened. 

In  so  far  as  the  Permanent  Court  is  concerned,  it  remains  for  me  to  call 
the  Commission's  attention  to  a  remarkable  provision,  due  to  the  initiative  of 
the  French  delegation.  It  is  of  great  importance  in  the  work  of  pacification  in 
which  we  are  engaged.  It  tends  to  connect  the  Permanent  Court  of  Arbitration 
to  a  still  greater  extent  with  this  work. 

Considerations  that  are  legitimate  in  many  respects  and  that  it  is,  in  any 
event,  difficult  to  avoid  often  keep  States  from  having  recourse  to  arbitration. 
Public  opinion  is  easily  led  to  regard  a  step  in  this  direction  as  an  act  of  weak- 
ness rather  than  an  act  of  confidence  in  the  domain  of  law  and  of  moderation 
based  upon  a  spirit  of  justice. 

In  this  situation  and  with  an  eye  to  the  cases  of  acrimonious  disputes  that  may 
arise,  we  may  ask  ourselves  whether  it  is  not  possible  and  whether  it  would  not 
be  wise  to  provide  for  calling  the  attention  of  the  parties  at  variance  to  the  pro- 
visions of  the  present  Convention,  especially  as  regards  access  to  the  Permanent 
Court  of  Arbitration,  which  is  open  to  all. 

The  means  of  attaining  this  result  is  sought  in  the  International  Bureau. 
This  measure  had  the  advantage  of  enabling  the  chosen  organ  to  operate  in  a 
way  as  of  its  own  accord,  without  wounding  susceptibilities  in  any  manner  what- 
ever. 

Another  means  of  reaching  the  same  result,  less  surely  it  is  true,  but  perhaps 
with  more  authority,  is  by  the  exercise  of  mediation  applied  to  the  particular  end 
of  which  we  have  already  spoken.  The  committee  has  definitively  decided  upon 
this  means  by  adopting  a  new  provision,  by  virtue  of  which  the  signatory  Powers 
consider  it  their  duty,  in  case  a  serious  dispute  should  threaten  to  break  out 
between  two  or  more  among  them,  to  remind  them  that  the  Permanent  Court 
of  Arbitration  is  open  to  them.  It  would  therefore  be  expressly  stipulated  that 
the  fact  of  one  or  more  Powers  reminding  the  parties  in  dispute  of  the  provisions 
of  the  present  Convention  and  the  advice  given  in  the  higher  interests  of  peace 
to  appeal  to  the  Permanent  Court  may  only  be  regarded  as  acts  of  good  offices. 

The  principle  of  this  proposal,  set  forth  successfully  by  the  President 
and  Baron  d'Estournelles  de  Constant,  was  received  most  favorably  in  the 
committee.  The  President  will,  I  hope,  be  good  enough  to  point  out  to  the 
Commission  the  importance  that  we  all  attach  to  it. 

The  last  question  which  I  have  to  take  up  in  this  general  exposition  is  that 
of  arbitral  procedure.  I  should  like  to  show  briefly  the  arrangement  of  the  provi- 
sions adopted  by  the  committee  along  these  lines. 

It  is  very  desirable,  when  the  parties  have  recourse  to  arbitration,  that  the 
court  chosen  by  them  should  operate  according  to  rules  of  such  a  character  as 
to  obviate  every  difficulty.  Such  rules  do  not  exist  at  the  present  time,  at  least 
in  the  form  of  provisions  that  are  uniformly  and  generally  accepted.  The  more 
arbitrations  increase  in  number,  the  more  manifest  becomes  the  need  of  such  pro- 
visions. The  Institute  of  International  Law  long  ago  understood  the  inconven- 
iences resulting  from  the  present  state  of  aflfairs  and  formulated  regulations  con- 


600  THIRD  COMMISSION 

cerning  arbitral  procedure  which  are  of  the  greatest  interest.  Other  efforts  have 
been  made  in  the  same  direction.  The  practice  of  international  arbitration  has 
developed.  In  a  number  of  important  arbitrations  rules  have  been  established 
which  give  evidence  of  wise  foresight  and  reveal  the  fruit  of  numerous  experi- 
ments. It  is  now  possible  to  gather  from  the  labors  of  science  and  the  results  of 
experience  a  body  of  prescriptions  of  a  kind  that  will  be  adopted  by  the  States 
at  large. 

The  Russian  delegation  seemed  to  be  particularly  fitted  to  take  the  initiative 
in  this  advance,  as  it  has  in  its  midst  the  illustrious  jurisconsult  who  has  so 
often  been  called  upon  to  perform  the  duties  of  an  international  arbitrator. 
Our  colleagues  from  Russia  have  indeed  presented  us  with  a  remarkable  arbitra- 
tion code,  which  has  constantly  served  us  as  a  guide  in  the  work  we  have  under- 
taken.    Here  are  the  main  points  upon  which  we  have  concentrated  our  attention. 

In  the  first  place,  we  undertook  to  determine  as  clearly  as  possible  the  points 
which  the  compromis  must  in  every  case  determine  as  clearly  as  possible,  namely, 
the  matter  in  dispute  and  the  extent  of  the  arbitrators'  powers. 

We  have  sought  the  best  method  of  forming  the  arbitral  tribunal  and  of 
appointing  the  umpire,  if  occasion  demands.  It  sometimes  happens  that  the  arbi- 
trators directly  appointed  by  the  States  cannot  agree  upon  the  choice  of  an 
umpire.  With  a  view  to  this  contingency,  treaties  generally  stipulate  recourse 
to  a  third  Power,  who  is  vested  with  the  mission  of  this  supplementary  election. 
Many  treaties  do  not  go  beyond  this  general  provision.  Some,  however,  pro- 
[14]  vide  for  cases  in  which  it  is  found  impossible  to  reach  an  agreement  as  to 
the  designation  of  the  third  Power,  stipulating  for  such  cases  the  interven- 
tion of  a  neutral  Power  or  of  the  head  of  a  specific  State,  or  even  the  drawing  of 
lots  as  a  last  resort. 

The  committee,  in  concert  with  the  Russian  delegation,  felt  that  it  could 
with  advantage  adopt  a  system  similar  to  that  accepted  for  the  operation  of  the 
special  mediation  proposed  by  Mr.  Holls.  Therefore,  if  an  agreement  is  not 
reached  as  to  the  selection  of  a  single  Power,  each  party  designates  a  different 
Power,  and  the  selection  of  the  umpire  is  made  by  the  Powers  thus  designated. 
The  specific  duty  of  these  Powers  being  to  choose  conjointly  an  umpire,  it  is 
hardly  necessary  to  anticipate,  it  would  seem,  the  eventuality  of  their  not  succeed- 
ing in  so  doing. 

On  another  important  point  the  committee  considered  it  necessary  to  modify 
the  provisions  adopted  by  the  Russian  project,  namely,  in  the  event  of  the  death 
of  an  arbitrator  or  his  inability  to  serve  for  any  reason  whatever.  The  Russian 
project  proposed  that  in  such  a  case  the  compromis  should  be  declared  wholly 
annulled.  After  a  long  discussion,  the  very  opposite  rule  prevailed,  and  it  was 
agreed  that,  unless  it  be  stipulated  to  the  contrary,  the  place  of  the  deceased  or 
absent  arbitrator  shall  be  filled  in  the  same  manner  as  that  fixed  for  his  appoint- 
ment. 

The  question  of  the  seat  of  the  arbitral  tribunal  and  the  language  to  be  used 
before  the  arbitrators  did  not  give  rise  to  any  serious  difficulties.  It  was  decided 
along  the  lines  of  the  proposals  submitted  by  the  Russian  delegation. 

The  same  is  true  as  regards  the  question  of  the  appointment  of  special  agents 
—  those  necessary  intermediaries  in  international  arbitration  procedure  between 
the  tribunal  and  the  Powers  at  variance. 

The  two  successive  phases  which  generally  occur  in  arbitral  procedure  — 
the   phase   of   the   communications   properly   so   called   and   the   phase   of   the 


FOURTH  MEETING,  JULY  7,  1899  601 

arguments  —  have  been  preserved  and  more  clearly  defined  in  certain  respects. 

The  committee  has  recognized  that  the  tribunal  has  the  power  to  pass  upon 
its  own  competence  by  interpreting  the  compromis,  as  well  as  the  other  treaties 
that  may  be  invoked  in  the  matter  and  by  applying  the  principles  of  international 
law. 

As  regards  the  deliberations,  the  Russian  proposal  adopted  the  rule  that  the 
decisions  shall  be  rendered  by  a  majority  of  the  members  present.  The  com- 
mittee has  thought  that,  in  order  to  insure  more  complete  guaranties,  it  is  wise  to 
require  a  majority  of  the  members  composing  the  tribunal. 

The  Russian  project,  for  practical  considerations,  refrained  from  stipulating 
the  necessity  of  giving  the  reasons  on  which  the  award  is  based.  While  recog- 
nizing to  a  certain  extent  the  importance  of  the  considerations  put  forward  by  the 
authors  of  the  project,  the  committee  did  not  feel  that  it  could  remain  silent  with 
regard  to  so  fundamental  a  guaranty. 

Revision  of  the  arbitral  award  was  not  provided  for  in  the  Russian  project. 
The  xA.merican  delegation,  on  the  other  hand,  provided  in  its  plan  for  the  con- 
stitution of  an  arbitral  court  expressly  for  the  "  rehearing"  of  the  cause.  The 
principle  of  appeal  in  the  matter  of  arbitral  awards  has  been  rejected,  but  the 
principle  of  an  extremely  limited  revision  has  carried  the  day.  An  additional 
article  sanctions  this.  The  application  for  revision  must  be  made  to  the  tribunal 
that  has  passed  upon  the  case.  Such  application  may  be  made  within  the  three 
months  following  notification  of  the  judgment  and  only  in  case  of  the  discovery 
of  a  new  fact  which  would  have  materially  affected  the  award  and  which  at  the 
time  of  the  award  was  unknown  to  the  tribunal  itself  and  to  the  parties.  This 
is  an  important  guaranty  against  abuse  of  requests  for  revision. 

It  may  happen  that  a  convention  has  been  concluded  by  a  number  of  Powers 
and  that  there  arises  between  two  of  these  States  a  question  of  interpretation. 
Mr.  AssER  considered  that  in  such  an  event  the  other  States  would  be  called  upon 
to  intervene  in  the  case,  so  that  the  interpretation  contained  in  the  award  might 
become  binding  upon  all  these  States.  This  proposal  has  been  accepted  by  the 
committee;  it  has  been  made  the  subject  of  a  special  provision,  inserted  at  the 
end  of  the  chapter  on  arbitration  procedure. 

Such  are  the  principal  provisions  grouped  by  the  committee  under  the  fol- 
lowing title :  International  arbitration.  Considered  in  themselves  and  in  their 
relation  to  the  law  of  nations  as  it  now  stands,  these  provisions  constitute  a  re- 
markable step  forward.  Considered  from  the  point  of  view  of  their  influence 
upon  the  future,  they  stand  out  as  a  valuable  pledge  toward  the  realization  of  the 
purpose  pursued  by  the  Conference. 

This  is  not  a  perfect  piece  of  work.  The  members  of  the  committee  would 
be  the  first  to  admit  its  imperfections.  They  believe  nevertheless  that  it  deserves 
to  be  generally  accepted.  If  the  Conference  approves  it,  it  will  be  for  the  Govern- 
ments to  make  it  bring  forth  the  results  that  may  legitimately  be  expected  from 
it  for  the  good  of  mankind,  the  fraternal  rapprochement  of  peoples,  the  stability 
of  peace,  the  honor  and  development  of  modern  civilization.     (Applause.) 

The  President  says  that  the  applause  which  has  greeted  Chevalier  Des- 
CAMPs'  words  shows  the  sentiments  of  the  assembly  on  hearing  the  exposi- 
[15]  tion,  so  clearly  put  and  of  such  lofty  inspiration,  which  he  has  just  pre- 
sented. 

This  exposition  will  remain  the  most  lucid  and  useful  commentary  on  the 
provisions  that  are  to  govern  the  question  of  arbitration,  and  it  will  be  the  surest 


602  THIRD  COMMISSION 

guide  not  only  for  the  members  of  the  Conference  during  their  discussions,  but 
also  for  the  Governments  themselves  hereafter,  when  it  is  a  question  of  interpret- 
ing the  text  of  the  Convention. 

For  these  reasons  Chevalier  Descamps  is  entitled  to  the  gratitude  of  all,  and 
the  President  makes  himself  the  interpreter  of  the  Commission's  sentiments  with 
an  ardent  and  sincere  emotion.     (Unanimous  applause.) 

In  order  to  enable  the  delegates  to  study  the  draft  Convention  and  to  com- 
municate its  text  to  their  respective  Governments,  the  President  proposes  that 
the  next  meeting  of  the  Commission  be  postponed  for  a  week. 

Mr.  Delyanni  requests  that  the  meeting  be  called  for  Monday,  the  17th, 
because  of  the  difficulties  of  communicating  by  mail  with  his  country. 

Mr.  Beldiman  remarks  that  there  is  still  another  reason  which  leads  him 
to  second  Mr.  Delyanni's  proposal.  As  a  matter  of  fact,  July  14  is  the  date  of 
the  French  national  holiday,  and  the  Commission  would  no  doubt  want  to  re- 
lieve Mr.  Bourgeois  of  the  necessity  of  presiding  on  that  day. 

The  President  thanks  Mr.  Beldiman  for  his  delicate  thoughtfulness.  He 
considers  that  there  would  be  all  the  more  advantage  in  fixing  July  17  as  the 
date  of  the  next  meeting,  since  it  is  to  be  hoped  that  all  will  then  be  in  a  position 
to  take  up  the  work  of  examining  the  postponed  project  without  interruption. 

The  Commission  therefore  decides  that  its  next  meeting  will  take  place  on 
Monday,  July  17,  at  2  o'clock. 

The  meeting  adjourns. 


FIFTH   MEETING 

JULY  17,  1899 


Mr.  Leon  Bourgeois  presiding. 

The  minutes  of  the  fourth  meeting  are  adopted. 

Mr.  Beldiman  says  that  he  joins  whole-heartedly  in  the  words  addressed  by 
the  President  to  Chevalier  Descamps  in  praise  of  the  very  lucid  exposition  that 
he  made  at  the  preceding  meeting. 

Nevertheless,  in  so  far  as  the  official  interpretative  character  of  this  exposi- 
tion is  concerned,  Mr.  Beldiman,  without  contesting  its  absolute  faithfulness,  says 
that  he  must  leave  his  Government  entirely  free  to  pass  upon  this  point. 

The  President  replies  that  there  can  be  no  doubt  as  to  the  character  of  Mr. 
Descamps'  exposition. 

In  future  when  any  one  desires  to  refer  to  the  preparatory  work  of  the 
Commission,  nothing  will  be  more  useful  than  the  reporter's  commentary. 

Before  passing  to  an  examination  of  the  articles  relative  to  international 
commissions  of  inquiry  and  arbitration,  the  text  of  which  has  been  corrected  and 
distributed.  Chevalier  Descamps  explains  the  reasons  why  Article  19  has  been 
transferred  to  No.  29  bis  (Section  3,  Arbitration  procedure),  where  it  seemed 
to  belong. 

He  adds  that  the  corrected  copy  is  the  result  of  further  consideration  by 
the  committee  of  examination,  to  which  various  amendments  have  been  sub- 
mitted and  which  has  led  the  committee  to  make  certain  changes  in  the  original 
reading. 

The  President  recalls  that  the  Commission  adopted,  on  the  first  reading, 
Articles  1-8  relative  to  the  maintenance  of  general  peace  and  good  offices  and 
mediation.     He  opens  the  discussion  on  Article  9. 

Mr.  Beldiman  states  that  he  is  in  the  midst  of  an  exchange  of  views  with 
his  Government  and  therefore  is  unable  to  take  part  in  the  discussion,  on  the 
first  reading;  but  he  reserves  the  right  to  express  his  opinions  on  the  second 

reading. 
[16]   Mr.  Miyatovitch  makes  a  similar  declaration. 

In  order  to  enable  the  delegates  of  Roumania  and  Serbia  to  receive  their  in- 
structions and  to  take  part  to  advantage  in  the  discussion  of  Articles  9-13,  the 
President  proposes  that  this  discussion  be  postponed  until  the  next  meeting  and 
that  the  Commission  pass  immediately  to  Section  4  on  international  arbitration. 

His  Excellency  Turkhan  Pasha  speaks  as  follows : 

The  Ottoman  delegation,  not  having  as  yet  instructions  from  its  Government 
on  the  subject  presented  to  the  Third  Commission  by  the  committee  of  examina- 
tion, will  abstain  from  taking  part  in  the  discussion  thereof. 

603 


604  THIRD  COMMISSION 

The  President  informs  his  Excellency  Turkhan  Pasha  that  his  declara- 
tion will  be  put  on  record. 
Article  14  is  read: 

International  arbitration  has  for  its  object  the  settlement  of  disputes  between  States 
by  judges  of  their  own  choice,  and  on  the  basis  of  respect  for  law. 

This  article  is  adopted. 
Article  15  is  read: 

In  questions  of  law,  and  especially  in  the  interpretation  or  application  of  international 
conventions,  arbitration  is  recognized  by  the  signatory  Powers  as  the  most  effective,  and  at 
the  same  time  the  most  equitable,  means  of  settling  disputes  which  diplomacy  has  failed 
to  settle. 

Mr.  Beldiman  states  that  he  reserves  the  right  to  present  an  amendment  to 
this  article  on  the  second  reading. 

Article  15  is  adopted,  subject  to  this  declaration. 
Article  16  is  read : 

The  arbitration  convention  is  concluded  for  questions  already  existing  or  for  questions 
which  may.  arise  eventually. 

It  may  embrace  any  dispute  or  only  disputes  of  a  certain  category. 

Mr.  Beldiman  makes  the  same  declaration  with  regard  to  this  article. 
Article  16  is  adopted,  subject  to  this  declaration. 
Article  17  is  read: 

The  arbitration  convention  implies  an  engagement  to  submit  in  good  faith  to  the  arbi- 
tral award. 

This  article  is  adopted. 
Article  18  is  read: 

Independently  of  general  or  private  treaties  expressly  stipulating  recourse  to  arbitra- 
tion as  obligatory  on  the  signatory  Powers,  these  Powers  reserve  to  themselves  the  right 
of  concluding,  either  before  the  ratification  of  the  present  act  or  later,  new  agreements, 
general  or  private,  with  a  view  to  extending  obligatory  arbitration  to  all  cases  which  they 
may  consider  it  possible  to  submit  to  it. 

Mr.  Beldiman  makes  the  same  declaration  with  regard  to  this  article. 

Mr.  Veljkovitch  desires  to  make  it  clear  that  Article  18  leaves  to  the  Gov- 
ernments the  option  of  concluding,  either  before  ratification  or  afterwards,  new 
agreements,  but  that  this  provision  does  not  imply  an  engagement  on  the  part  of 
these  Governments  to  do  so. 

The  President  replies  that  there  can  be  no  doubt  as  to  this  interpreta- 
tion. 

Article  18  is  adopted,  subject  to  the  above-mentioned  declarations. 
Article   19  being  provisionally  transferred  to   Section  3,  the   Commission 
passes  to  Section  2 :    The  Permanent  Court  of  Arbitration. 
Article  20  is  read: 

With  the  object  of  facilitating  an  immediate  recourse  to  arbitration  for  international 
differences  which  it  has  not  been  possible  to  settle  by  diplomacy,  the  signatory  Powers  un- 
dertake to  organize  a  Permanent  Court  of  Arbitration,  accessible  at  all  times  and  operating, 


FIFTH  MEETING,  JULY  17,  1899  605 

unless  otherwise  stipulated  by  the  parties,  in  accordance  with  the  rules  of  procedure  inserted 
in  the  present  Convention. 

Article  20  is  adopted. 
Article  21  is  read: 

The  Permanent  Court  shall  be  competent  for  all  arbitration  cases,  unless  the  parties 
agree  to  institute  a  special  tribunal. 

[17]   Count  de  Macedo  says  that  his  instructions  enable  him  to  accept  the  entire 
project  ad  referendum  but  that  he  desires  to  submit  an  amendment  to 
Article  21,  which  seems  to  him  calculated  to  give  greater  force  and  vitality  to  the 
institution  of  the  Permanent  Court  of  Arbitration. 
This  amendment  reads  as  follows: 

Nevertheless,  in  the  event  of  an  understanding  simply  to  have  recourse 
to  arbitration,  the  signatory  Powers  agree  to  give  the  preference  to  the 
Permanent  Court  of  Arbitration  rather  than  to  a  special  tribunal,  whenever 
circumstances  permit. 

Count  de  Macedo  does  not  ask  the  Commission  to  pass  upon  this  amend- 
ment immediately,  but  to  refer  it  to  the  next  meeting  of  the  committee  of  exam- 
ination. 

The  President  says  that  this  will  be  done,  and  Article  21  is  adopted,  subject 
to  this  reservation. 

Article  22  is  read: 

An  International  Bureau,  established  at  The  Hague,  and  under  the  direction  of  a  per- 
manent secretary  general,  serves  as  registry  for  the  Court. 

This  Bureau  is  the  channel  for  communications  relative  to  the  meetings  of  the  Court. 

It  has  the  custody  of  the  archives  and  conducts  all  the  administrative  business. 

The  signatory  Powers  undertake  to  communicate  to  the  International  Bureau  at  The 
Hague  a  duly  certified  copy  of  any  conditions  of  arbitration  arrived  at  between  them  and 
of  any  award  concerning  them  delivered  by  a  special  tribunal. 

They  undertake  likewise  to  communicate  to  the  Bureau  the  laws,  regulations,  and 
documents  eventually  showing  the  execution  of  the  awards  given  by  the  Court. 

Chevalier  Descamps  explains  that,  at  Mr.  Rolin's  suggestion,  the  com- 
mittee of  examination  has  inserted  the  words  "  duly  certified  "  before  the  word 
*'  copy  "  in  the  original  text.  Pie  thinks  that  this  formality  will  give  the  Bureau's 
archives  greater  authority. 

His  Excellency  Mr.  Eyschen  remarks  that  it  would  be  preferable  to  leave 
to  the  Permanent  Council  mentioned  in  Article  28  the  question  of  the  title  to  be 
given  to  the  head  of  the  International  Bureau.  He  thinks  that  there  are  objec- 
tions to  giving  him  the  title  of  secretary  general,  inasmuch  as  he  will  actually 
have  the  duties  and  responsibilities  of  a  director.  He  therefore  proposes  that 
the  words  "  and  under  the  direction  of  a  permanent  secretary  general "  be 
stricken  out. 

Chevalier  Descamps  says  that  this  provision  goes  back  to  his  Excellency  Sir 
Julian  Pauncefote's  original  project.  He  recognizes  the  fact  that  it  no  longer 
fits  in  with  the  present  organization  of  the  International  Bureau  and,  for  his 
part,  he  can  see  no  objection  to  leaving  it  to  the  Permanent  Council  to  organize 
the  administration  of  this  Bureau  as  it  sees  fit. 


606  THIRD  COMAIISSION 

Article  22  is  adopted  with  the  omission  proposed  by  his  Excellency  Mr. 
Eyschen. 

Article  23  is  read : 

Within  the  three  months  following  its  ratification  of  the  present  act,  each  signatory 
Power  shall  select  four  persons  at  the  most,  of  known  competency  in  questions  of  interna- 
tional law,  of  the  highest  moral  reputation,  and  disposed  to  accept  the  duties  of  arbitrators. 

The  persons  thus  selected  shall  be  inscribed,  as  members  of  the  Court,  in  a  list  which 
shall  be  notified  to  all  the  signatory  Powers  by  the  Bureau. 

Any  alteration  in  the  list  of  arbitrators  is  brought  by  the  Bureau  to  the  knowledge  of 
the  signatory  Powers. 

Two  or  more  Powers  may  agree  on  the  selection  in  common  of  one  or  more  members. 

The  same  person  can  be  selected  by  different  Powers. 

The  members  of  the  Court  are  appointed  for  a  term  of  six  years.  Their  appointments 
can  be  renewed. 

In  case  of  the  death  or  retirement  of  a  member  of  the  Court,  his  place  is  filled  in  the 
same  way  as  he  was  appointed. 

The  members  of  the  Court  enjoy  diplomatic  privileges  and  immunities  in  the  perform- 
ance of  their  duties. 

Count  de  Grelle  Rogier  asks  for  certain  explanations  with  regard  to  the 
final  paragraph  of  Article  23. 
[18]  The  provision  which  grants  diplomatic  immunities  to  the  members  of  the 
arbitral  court  may,  in  this  concise  form,  give  rise  to  a  doubtful  or  too 
broad  interpretation. 

It  would  be  well  to  know  the  exact  meaning  to  be  attached  to  the  expression 
*'  in  the  performance  of  their  duties."  Did  the  committee  of  examination  wish 
to  indicate  by  these  words  that  the  members  of  the  Court  will  enjoy  the  privileges 
of  diplomatic  immunity  when  they  are  actually  sitting  or  from  the  time  that  they 
are  designated  to  pass  upon  a  difference  up  to  the  date  on  which  the  award  is 
rendered  ? 

If  the  latter  interpretation  were  to  prevail,  it  would  give  rise  to  rather 
serious  objections,  and  it  would  be  difficult  to  understand  the  advantage  of  such 
a  privilege,  which  has  never  been  enjoyed  by  international  arbitrators  up  to  the 
present  time,  and  the  lack  of  which  has  caused  no  inconvenience.  Again,  even 
limited  diplomatic  immunity  could  only  be  granted  to  the  extent  allowed  by  the 
constitutional  laws  of  the  several  countries. 

If,  for  example,  the  arbitral  Court  were  to  sit  in  Belgium,  Count  de  Grelle 
Rogier  does  not  believe  that  the  Belgian  Constitution  admits  of  granting  the 
diplomatic  immunities  in  question  to  those  of  its  nationals  who  are  members  of 
that  Court. 

Chevalier  Descamps  says  that  the  idea  was  that  the  immunities  should  apply 
to  the  arbitrators  when  they  are  actually  sitting.  In  so  far  as  the  situation  of 
arbitrators  sitting  in  their  own  country  is  concerned,  a  reservation  might  be  made, 
and  the  committee  of  examination  will  endeavor  to  find  a  formula  to  express  it. 
It  was  desired  especially  to  honor  the  position  of  arbitrator  by  assimilating  it  in 
the  matter  of  prerogatives  to  that  of  diplomat. 

Count  de  Grelle  Rogier  states  that  this  explanation  satisfies  him. 

Jonkheer  van  Karnebeek  thinks  that,  in  order  to  prevent  in  future  difficul- 
ties which  may  present  themselves  more  especially  from  the  standpoint  of  his 
country,  it  would  be  well  to  mention  clearly  in  the  minutes,  and  even  to  define 


FIFTH  MEETING,  JULY  17,  1899  607 

in  the  committee  of  examination,  the  exact  scope  of  the  provision  contemplated 
by  Count  de  Grelle  Rogier. 

The  President  says  that,  since  the  Commission  appears  to  be  in  agreement 
at  bottom,  the  committee  of  examination  will  endeavor  to  find  a  more  precise 
formula,  as  desired  by  Mr.  van  Karnebeek, 

Count  de  Macedo  proposes  that  the  Commission  return  to  the  maximum  of 
two  members  of  the  Court  to  be  appointed  by  each  Power.  He  thinks  that 
such  a  provision  would  give  the  tribunal  greater  authority. 

Dr.  Zorn  explains  that,  if  a  maximum  of  four  members  has  been  proposed, 
this  has  been  done  in  order  to  take  into  account  the  necessity  for  the  great 
Powers  to  have  in  the  arbitral  Court  representatives  of  different  specialities  — 
diplomats,  soldiers,  and  jurisconsults.  He  does  not  believe  that  his  Government 
will  change  its  opinion  on  this  question,  and  he  makes  the  most  express  reserva- 
tions with  regard  to  the  amendment  proposed  by  Count  de  Macedo. 

Count  de  Macedo  asks  only  that  his  amendment  be  referred  to  the  com- 
mittee of  examination. 

The  President  says  that  this  will  be  done. 

Dr.  Stancioff  asks  for  certain  explanations  in  the  matter  of  the  freedom 
that  will  be  left  to  the  Powers  in  the  selection  of  the  arbitrators.  Does  Article 
23  purposely  omit  to  say,  in  conformity  with  Section  3  of  his  Excellency  Sir 
Julian  Pauncefote's  proposal,  "  persons  of  its  nationality  "  ?  And  does  Article 
23  mean  that  the  persons  whom  a  Power  appoints  as  members  of  the  Permanent 
Court  may  belong  to  another  nationality? 

Chevalier  Descamps  replies  that  it  was  not  desired  to  restrict  in  any  way 
the  freedom  of  the  Powers  in  this  respect. 

Mr.  Asset  feels  that  he  ought  to  point  out  that  Article  23,  paragraph  5, 
provides  that  the  same  person  may  be  chosen  as  an  arbitrator  by  different  Powers. 
This  would  be  impossible  if  a  Power  could  choose  only  its  own  nationals. 

Article  23  is  adopted,  subject  to  these  reservations. 

Article  24  is  read: 

The  signatory  Powers  which  wish  to  have  recourse  to  the  Court  for  the  settlement  of 
a  difference  that  has  arisen  between  them  choose  from  the  general  list  the  number  of  arbi- 
trators upon  which  they  have  agreed  by  common  accord. 

They  notify  to  the  Bureau  their  determination  to  have  recourse  to  the  Court  and  the 
names  of  the  arbitrators  whom  they  have  designated. 

In  default  of  a  provision  to  the  contrary,  the  tribunal  of  arbitration  is  constituted  in 
accordance  with  the  rules  fixed  by  Article  31  of  the  present  Convention. 

The  tribunal  thus  composed  forms  the  competent  court  for  the  case  in  question. 

It  assembles  on  the  date  fixed  by  the  parties. 

[19]  Mr.  Rolin  says  that  he  had  proposed  an  amendment  to  this  article  with 
regard  to  which  an  agreement  could  not  be  reached  because  of  lack  of  time. 
This  amendment  made  the  article  read  as  follows: 

The  signatory  Powers  which  wish  to  have  recourse  to  the  Court  for 
settlement  of  a  difference  that  has  arisen  between  them  choose  from  the 
general  list  of  the  members  of  the  Court  the  arbitrators  who  are  to  form  the 
arbitral  tribunal. 

They  notify  to  the  Bureau  their  determination  to  have  recourse  to  the 
Court  and  the  names  of  the  arbitrators. 

In  default  of  a  provision  to  the  contrary,  these  arbitrators  are  appointed 


608  THIRD  COMMISSION 

in  accordance  with  the  rules  fixed  by  Article  31  of  the  present  Convention, 
The  arbitrators  appointed  form  the  arbitral  tribunal  for  the  case  in 
question.     It  assembles  on  the  date  fixed  by  the  parties. 

Mr.  RoLiN  requests  the  Commission  to  take  under  consideration  this  amend- 
ment whose  essential  object  is  to  make  it  perfectly  clear  that  the  tribunal  does  not 
come  into  existence  until  all  the  arbitrators,  including  the  umpire,  have  been  ap- 
pointed. 

Chevalier  Descamps  thinks  that  Mr.  Rolin's  proposal,  however  interesting  it 
may  be,  would  so  upset  the  arrangement  of  Article  24  that  it  would  be  regrettable 
to  adopt  it  as  it  is  formulated. 

The  President  says  that  the  committee  of  examination  will  examine  Mr. 
Rolin's  proposal  and,  in  case  of  a  disagreement,  the  Commission  will  pass  upon 
the  question  on  the  second  reading. 

Article  24  is  adopted,  subject  to  this  reservation. 

Article  25  is  read : 

The  tribunal  of  arbitration  sits  ordinarily  at  The  Hague. 

Except  in  cases  of  necessity,  the  place  of  session  can  only  be  altered  with  the  assent 
of  the  parties. 

Chevalier  Descamps  points  out  an  inconsistency  between  this  article  and 
Article  35  in  the  matter  of  the  seat  of  the  arbitral  tribunal.  There  can  be  no 
difficulty,  so  far  as  the  Permanent  Court  is  concerned,  whose  seat,  under  the  terms 
of  Article  25,  is  The  Hague.  In  the  case  provided  for  by  Article  3S  the  designa- 
tion of  the  seat  of  the  Court  is  left  to  the  parties;  but  if  this  designation  is  not 
made  by  formal  agreement,  it  is  understood  that  the  seat  of  the  court  is  The 
Hague.     Moreover,  the  parties  are  always  free  to  change  this  designation. 

Mr.  d'Ornellas  Vasconcellos  desires  that  the  wording  of  this  article  may  be 
sufficiently  precise  to  be  understood  without  a  commentary  and  that  it  show 
more  clearly  the  difference  between  the  two  cases.  Therefore  he  proposes  that 
the  words  "  the  tribunal "  at  the  beginning  of  the  article  be  changed  to  "  this 
tribunal." 

Chevalier  Descamps  thinks  that  it  is  important  not  to  make  these  two  articles 
•overlap.  The  difference  between  the  arbitral  tribunal  which  is  an  emanation  of 
the  Court  of  Arbitration,  and  an  arbitration  tribunal  formed  by  an  agreement  be- 
tween the  parties  for  a  special  case  is  readily  understood.  He  favors  keeping 
the  article  as  it  stands  and,  if  necessary,  mentioning  Mr.  d'Ornellas  Vasconcel- 
los' observation  in  the  report. 

Mr.  Asset  calls  the  Commission's  attention  to  a  deficiency  which  he  has  dis- 
covered in  Article  25  and  which  he  intends  to  lay  before  the  committee  of  exam- 
ination. It  would  be  advisable  to  state  that  "  the  place  of  session  can  only  be 
-altered  by  the  tribunal  with  the  assent  of  the  parties." 

The  Commission  concurs  in  this  point  of  view. 

Article  25  thus  amended  is  adopted. 

Article  26  is  read: 

The  International  Bureau  at  The  Hague  is  authorized  to  place  its  premises  and  staff 
at  the  disposal  of  the  signatory  Powers  for  the  use  of  any  special  board  of  arbitration. 

Powers  which  are  not  signatories  of  the  present  act  may  also  have  recourse  to  the 
jurisdiction  of  the  Court  under  the  conditions  prescribed  by  the  present  Convention. 


FIFTH  MEETING,  JULY  17,  1899  609 

Mr.  Renault  asks  for  a;  modification,  in  the  second  paragraph  of  this  article 
which  does  not  affect  the  meaning,  but  which  makes  it  clearer.  It  is  evident  that 
the  jurisdiction  of  the  Court  may  be  offered  to  non-signatory  Powers;  but  in 
order  to  avoid  any  doubt  in  the  matter  of  interpretation,  it  should  be  stated  that 
non-signatory  Powers  may  not  apply  to  the  Court  until  they  have  signed  an  arbi- 
tration compromis. 

Mr.  Renault  proposes  therefore  that  the  second  paragraph  assume  the 
following  form : 

The  International  Court  may  also  be  called  upon  to  decide  a  dispute 
between  non-signatory  Powers,  or  between  a  signatory  Power  and  a  non- 
signatory  Power,  if  these  Powers  have  concluded  a  preliminary  arbitration 
convention  or  a  compromis,  stating  the  intention  of  both  of  the  parties  to 
have  recourse  to  this  tribunal. 

Chevalier  Descamps  says  that  the  committee  of  examination  will  study  the 
amendment,   which   has   just   been   proposed,    in   conjunction   with   Mr.    Ren- 
ault. 
[20]  Article  26  is  adopted,  subject  to  this  reservation. 
Article  27  is  read: 

The  signatory  Powers  consider  it  their  duty,  if  a  serious  dispute  threatens  to  break 
out  between  two  or  more  of  them,  to  remind  these  latter  that  the  Permanent  Court  is  open 
to  them. 

Consequently,  they  declare  that  the  fact  of  reminding  the  parties  at  variance  of  the 
provisions  of  the  present  Convention,  and  the  advice  given  to  them,  in  the  highest  interests 
of  peace,  to  have  recourse  to  the  Permanent  Court,  can  only  be  regarded  as  in  the  nature 
of  good  offices. 

Mr.  Beldiman  makes  the  same  reservation  with  regard  to  this  article  as  he 
made  concerning  Articles  15,  16,  and  18. 

His  Excellency  Count  Welsersheimb  states  that  he  also  reserves  his  opinion 
on  Article  27. 

The  President  officially  acknowledges  their  reservations  and  declares  Article 
27  adopted. 

Article  28  is  read : 

A  Permanent  Council  composed  of  the  diplomatic  representatives  of  the  Powers  ac- 
credited to  The  Hague  and  of  the  Netherland  Minister  for  Foreign  Affairs,  who  will  act  as 
president,  shall  be  instituted  in  this  town  as  soon  as  possible  after  the  ratification  of  the 
present  act  by  at  least  six  Powers. 

This  Council  will  be  charged  with  the  establishment  and  organization  of  the  Interna- 
tional Bureau,  which  will  be  under  its  direction  and  control. 

It  will  notify  to  the  Powers  the  constitution  of  the  Court  and  will  provide  for  its 
installation. 

It  will  settle  its  rules  of  procedure  and  all  other  necessary  regulations. 

It  will  decide  all  questions  which  may  arise  with  regard  to  the  operations  of  the  Court. 

It  will  have  entire  control  over  the  appointment,  suspension  or  dismissal  of  the  officials 
and  employees  of  the  Bureau. 

It  will  fix  the  payments  and  salaries,  and  control  the  general  expenditure. 

At  meetings  duly  summoned  the  presence  of  five  members  is  sufficient  to  render  valid 
the  discussions  of  the  Council.     The  decisions  are  taken  by  a  majority  of  votes. 

The  Council  addresses  to  the  signatory  Powers  an  annual  report  on  the  labors  of  the 
Court,  the  work  of  the  administration  and  the  expenditure. 


610  THIRD  COMMISSION 

Chevalier  Descamps  points  out  the  two  modifications  which  the  original  read- 
ing of  this  article  has  undergone  in  the  committee  of  examination.  The  first  con- 
sisted in  substituting  the  word  "accredited"  for  "resident"  (paragraph  1)  ;  the 
second  (same  paragraph)  fixed  upon  six  as  the  minimum  number  of  Powers 
that  must  have  ratified  the  Convention  in  order  to  make  it  possible  to  constitute 
the  Permanent  Council. 

His  Excellency  Count  Welsersheimb  is  of  the  opinion  paragraphs  2,  4,  and 
5  of  Article  28  give  the  Permanent  Council  a  freedom  of  action  which  is  equiva- 
lent to  a  sort  of  sovereignty.  In  view  of  the  importance  of  certain  of  this  Coun- 
cil's powers,  he  thinks  that  the  Governments  should  be  able  to  exercise  a  certain 
measure  of  control  over  the  operation  of  this  institution  and  that  the  Council 
should  therefore  be  obliged  to  make  its  decisions  known  to  the  respective  Gov- 
ernments. It  would  follow  that  the  decisions  would  not  be  valid  until  they  had 
received  the  approval  of  these  Governments. 

Chevalier  Descamps  replies  that  the  commitee  will  look  into  these  observa- 
tions. He  is,  however,  inclined  to  think  at  first  blush  that  the  modification  re- 
quested by  his  Excellency  Count  Welsersheimb  would  tend  to  impede  the  op- 
eration of  the  Council.  He  adds  that,  in  his  opinion,  the  present  wording  of  the 
article  insures  all  the  guaranties  that  could  be  wished  for.  The  Council  is  called 
upon  to  decide  matters  that  do  not  seem  to  be  of  a  character  to  be  submitted  to 
the  approval  of  all  the  Powers.  Moreover,  it  must  not  be  forgotten  that  the 
Council  must  make  an  annual  report  on  its  work.  This  report  will  be  addressed 
to  all  the  Governments  and  will  keep  them  posted  on  the  action  taken  in  all 
matters. 

Chevalier  Descamps  observes,  in  addition,  that  paragraph  4  empowers  the 
Council  to  draw  up  its  own  regulations.  This  means  that  it  will  be  entirely  free 
to  organize  its  work  as  it  may  see  fit.  There  is  nothing  in  these  provisions  that 
can  give  oflFense  to  the  Governments,  and  it  would  be  too  much  to  require  them 

to  approve  details  of  this  kind. 
[21]  His  Excellency  Count  Welsersheimb  regrets  that  he  cannot  agree  with 

this  view.  He  still  thinks  that  certain  of  the  Council's  functions  are  of 
great  importance  and  that  the  Governments  should  reserve  a  right  of  control  over 
them.  As  for  the  annual  report,  it  contains  nothing  but  accomplished  facts  which 
cannot  be  undone.  The  delegate  of  Austria-Hungary  therefore  requests  that 
his  proposal  be  referred  to  the  committee  of  examination,  in  order  that  the  ob- 
servations which  he  has  just  made  may  be  taken  into  account  and  the  wording  of 
the  article  modified. 

The  President  says  that  this  will  be  done.  He  adds  that  it  follows  from 
the  explanations  that  have  been  given  that  the  powers  of  the  Council,  as  formulated 
in  Article  28,  contemplate  measures  of  an  administrative  character  only  and  do 
not  permit  any  decision  of  a  political  or  judicial  character. 

The  committee  of  examination  will  endeavor  to  state  this  interpretation 
clearly. 

Article  28  is  adopted,  subject  to  these  reservations. 

Article  29  is  read : 

The  expenses  of  the  Bvireau  shall  be  borne  by  the  signatory  Powers  in  the  proportion 
fixed  for  the  International  Bureau  of  the  Universal  Postal  Union. 

This  article  is  adopted. 


FIFTH  MEETING,  JULY  17,  1899  611 

The  Commission  passes  to  Chapter  III   (Arbitration  procedure). 
Article  29  bis  is  read : 

With  a  view  to  encouraging  the  development  of  arbitration,  the  signatory  Powers  have 
agreed  on  the  following  rules  which  shall  be  applicable  to  arbitration  procedure  unless  other 
rules  have  been  agreed  on  by  the  parties. 

This  article  is  adopted. 
Article  30  is  read : 

The  Powers  which  have  recourse  to  arbitration  sign  a  special  act  (contpromis)  in 
which  are  clearly  defined  the  subject  of  the  dispute  and  the  extent  of  the  arbitrators'  powers. 
This  act  implies  an  engagement  of  the  parties  to  submit  in  good  faith  to  the  arbitral  award. 

This  article  is  adopted. 
Article  31  is  read: 

The  duties  of  arbitrator  may  be  conferred  on  one  arbitrator  alone  or  on  several  arbi- 
trators selected  by  the  parties  as  they  please,  or  chosen  by  them  from  the  members  of  the 
Permanent  Court  of  Arbitration  established  by  the  present  act. 

Failing  the  composition  of  the  tribunal  by  direct  agreement  of  the  parties,  the  follow- 
ing course  is  pursued : 

Each  party  appoints  two  arbitrators,  and  these  together  choose  an  umpire. 

If  the  votes  are  equally  divided  the  choice  of  the  umpire  is  entrusted  to  a  third  Power, 
selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects  a  different  Power, 
and  the  choice  of  the  umpire  is  made  in  concert  by  the  Powers  thus  selected. 

Baron  Bildt  says  that  he  had  proposed  an  amendment  to  this  article,  which 
the  committee  of  examination  did  not  think  it  could  accept. 
This  amendment  read  as  follows : 

Each  party  appoints  two  arbitrators,  and  these  together  choose  an  um- 
pire. 

Their  choice  must,  however,  be  submitted  to  the  approval  of  the  parties, 
each  of  whom  has  the  right  to  reject  it  without  giving  any  reasons  therefor. 

In  the  latter  case  or  if  the  votes  are  equally  divided,  the  choice  of  the 
umpire  is  entrusted  to  a  third  Power  selected  by  the  parties  by  common 
accord. 

Baron  Bildt  expatiates  upon  his  amendment,  emphasizing  the  necessity  of 
expressly  reserving  to  the  parties  the  right  to  refuse  or  to  accept  the  umpire. 

Chevalier  Descamps  does  not  dispute  the  fact  that  Baron  Bildt's  proposal 
is  of  interest,  but  he  thinks  it  would  be  difficult  to  accept  it.  It  would  be  danger- 
ous in  practice  to  establish  a  general  right  of  approval.  On  the  other  hand,  the 
rule  laid  down  does  not  present  any  danger,  and  we  may  be  sure  that  the  parties 
will  always  be  inspired  by  the  views  of  their  Governments  in  the  selection  of 
the  umpire.  However,  the  committee  of  examination  is  disposed  to  examine  again 
Baron  Bildt's  proposal. 

Baron  Bildt  replies  that  an  umpire  who  has  been  designated  may  have  pub- 
licly expressed  an  opinion  on  the  dispute  which  is  submitted  to  him,  thus  laying 

himself  open  to  rejection.     This  hypothesis  must  be  taken  into  account. 
[22]   Baron  Bildt  asks,  therefore,  either  that  the  formula  of  the  amendment  to 
Article  24  which  Mr.  Rolin  presented  be  applied  to  Article  31,  or  that  men- 


612  THIRD  COMMISSION 

tion  be  made  in  the  minutes  of  the  fact  that  the  Commission  did  not  accept  his  pro- 
posal because  it  considered  that  it  manifestly  follows  from  the  text  of  Article  31 
that  the  parties  are  free  to  refuse  or  to  accept  the  umpire. 

Mr.  Martens  says  that  he  cannot  enter  into  the  discussion  until  he  has 
warmly  congratulated  ChevaHer  Descamps  on  the  exposition  which  he  presented 
at  the  last  meeting. 

He  recalls  that  the  Russian  delegation,  in  proposing  the  forty  articles  rela- 
tive to  good  offices,  mediation,  and  arbitration,  and  in  suggesting  the  idea  of 
instituting  a  permanent  tribunal,  was  the  first  to  furnish  a  solid  basis  for  the  dis- 
cussions of  the  Commission. 

These  proposals  have  been  examined  in  a  sympathetic  spirit  and  the  Russian 
delegation  considers  it  a  special  duty  that  devolves  upon  it  to  express  its  gratitude 
therefor. 

In  so  far  as  the  amendment  presented  by  Baron  Bildt  is  concerned,  Mr. 
Martens  thinks  that  it  contains  a  principle  contrary  to  established  practice, 
sanctioned  by  time  and  experience.  When  two  Powers  agree  to  constitute  an 
arbitration  tribunal,  the  members  of  that  tribunal  almost  always  have  the  right 
to  choose  the  umpire.  That  is  the  only  method  of  procedure  that  Mr.  Martens 
considers  worthy  of  support  and  recommendable  to  the  Governments. 

An  umpire  who  should  be  appointed  by  the  Governments  would  find  himself 
in  a  very  difficult  situation.  But  if  the  selection  of  their  president  is  left  to  the 
arbitrators  themselves,  he  will  have  much  more  authority  than  an  umpire  desig- 
nated by  the  Governments  after  tedious  diplomatic  negotiations. 

The  umpire  must  not  be  forced  upon  the  tribunal  by  the  Powers ;  he  must  have 
their  moral  support  and  their  entire  confidence,  and  this  result  will  be  attained  by 
following  the  method  which  has  stood  the  test,  namely,  that  of  leaving  the  appoint- 
ment of  the  umpire  to  his  colleagues.  As  for  the  action  of  the  Government  in 
this  choice,  it  will  not  be  a  negligible  quantity,  as  seems  to  be  feared ;  the  arbitra- 
tors will  not  elect  an  umpire  without  consulting  their  Governments,  who  well 
know  what  men  are  most  worthy  of  filling  this  position  and  will  never  advise 
the  choice  of  an  umpire  who  would  not  deserve  the  confidence  of  all. 

Baron  Bildt  insists  that  his  proposal  be  referred  to  the  committee  of  exam- 
ination. 

The  President  says  that  this  will  be  done  and  declares  Article  31  adopted, 
subject  to  this  reservation. 

Article  32  is  read : 

When  a  sovereign  or  the  chief  of  a  State  is  chosen  as  arbitrator,  the  arbitration  pro- 
cedure is  settled  by  him. 

This  article  is  adopted. 
Article  33  is  read : 

The  umpire  is  ex  oMcio  president  of  the  tribunal. 

When  the  tribunal  does  not  include  an  umpire,  it  appoints  its  own  president. 

This  article  is  adopted. 
Article  34  is  read : 

In  case  of  the  death,  retirement,  or  disability  from  any  cause  of  one  of  the  arbitrators, 
his  place  is  filled  in  the  same  way  as  he  was  appointed. 


FIFTH  MEETING,  JULY  17,  1899  613 

This  article  is  adopted. 
Article  35  is  read: 

The  tribunal's  place  of  session  is  selected  by  the  parties.  Failing  this  selection,  the 
tribunal  sits  at  The  Hague. 

The  place  thus  fixed  cannot,  except  in  case  of  necessity,  be  altered  without  the  consent 
of  the  parties. 

This  article  is  adopted  with  the  modification  proposed  by  Mr.  Asser  with 
regard  to  Article  25,  namely,  the  insertion  of  the  words  "  by  the  tribunal "  after 
the  words  "  be  altered." 

Article  36  is  read: 

The  parties  are  entitled  to  appoint  delegates  or  special  agents  to  attend  the  tribunal 
to  act  as  intermediaries  between  themselves  and  the  tribunal. 

They  are  further  authorized  to  commit  the  defense  of  their  rights  and  interests  before 
the  tribunal  to  counsel  or  advocates  appointed  by  them  for  this  purpose. 

This  article  is  adopted. 
Article  7)7  is  read : 

The  tribunal  decides  on  the  choice  of  languages  the  use  of  which  shall  be  authorized 
before  it. 

[23]  His  Excellency  Count  Nigra  observes  that  this  article  does  not  mention  the 
language  which  the  tribunal  will  use  in  its  deliberations.  He  proposes  that 
Article  Z7  read  as  follows :  "  The  tribunal  decides  on  the  choice  of  the  lan- 
guages to  be  used  by  itself  and  to  be  authorized  to  be  used  before  it." 

Mr.  Martens  says  that  the  Anglo-American  arbitral  tribunal  sitting  in  Paris 
has  foreseen  the  difficulty  pointed  out  by  his  Excellency  Count  Nigra.  It  has 
decided  that  its  award  shall  be  rendered  in  three  languages :  English,  French,  and 
Spanish ;  it  is  better  to  leave  this  point  to  the  free  determination  of  the  tribunal. 
Mr.  Martens  calls  the  high  assembly's  attention  to  the  fact  that  these  same  rules, 
which  it  has  now  under  discussion,  have  already  been  put  into  execution  by  the 
Anglo-American  arbitral  tribunal,  which  has  adopted  unanimously  a  code  of  pro- 
cedure of  24  articles  that  are  entirely  in  conformity  with  the  stipulations  of  the 
draft  now  being  discussed  by  the  Commission. 

Chevalier  Descamps  says  that  the  committee  of  examination  will  endeavor 
to  insert,  either  in  its  report  or  in  the  text  of  the  article,  a  formula  that  will  meet 
the  wishes  of  his  Excellency  Count  Nigra.  Article  37  is  adopted,  subject  to  this 
reservation. 

Article  38  is  read: 

As  a  general  rule  arbitration  procedure  comprises  two  distinct  phases :  pleadings  and 
oral  discussions. 

The  pleadings  consist  in  the  communication  by  the  respective  agents  to  the  members 
of  the  tribunal  and  the  opposite  party  of  all  printed  or  written  acts  and  of  all  documents 
containing  the  grounds  relied  on  in  the  case.  This  communication  shall  be  made  in  the 
form  and  within  the  time  fixed  by  the  tribunal  in  accordance  with  Article  48. 

The  discussions  consist  in  the  oral  development  before  the  tribunal  of  the  arguments 
of  the  parties. 

This  article  is  adopted. 
Article  39  is  read : 


614  THIRD  COMMISSION 

Every  document  produced  by  one  party  must  be  communicated  to  the  other  party. 

This  article  is  adopted. 
Article  40  is  read: 

The  discussions  are  under  the  direction  of  the  president. 

They  are  only  public  if  it  be  so  decided  by  the  tribunal,  with  the  assent  of  the  parties. 

They  are  recorded  in  minutes  drawn  up  by  the  secretaries  appointed  by  the  president. 

This  article  is  adopted. 
Article  41  is  read: 

After  the  close  of  the  pleadings,  the  tribunal  is  entitled  to  refuse  discussion  of  all  new 
papers  or  documents  which  one  of  the  parties  may  wish  to  submit  to  it  without  the  consent 
of  the  other  party. 

This  article  is  adopted. 
Article  42  is  read : 

The  tribunal  is  free  to  take  into  consideration  new  papers  or  documents  to  which  its 
attention  may  be  drawn  by  the  agents  or  counsel  of  the  parties. 

In  this  case,  the  tribunal  has  the  right  to  require  the  production  of  these  papers  or 
documents,  but  is  obliged  to  make  them  known  to  the  opposite  party. 

This  article  is  adopted. 
Article  43  is  read : 

The  tribunal  can,  besides,  require  from  the  agents  of  the  parties  the  production  of  all 
papers,  and  can  demand  all  necessary  explanations.  In  case  of  refusal,  the  tribunal  takes 
note  of  it. 

This  article  is  adopted. 
Article  44  is  read: 

The  agents  and  counsel  of  the  parties  are  authorized  to  present  orally  to  the  tribunal 
all  the  arguments  they  may  consider  expedient  in  defense  of  their  case. 

This  article  is  adopted. 
Article  45  is  read: 

[24 J   They  are  entitled  to  raise  objections  and  points.    The  decisions  of  the  tribunal  on  these 
points  are  final,  and  cannot  form  the  subject  of  any  subsequent  discussion. 

This  article  is  adopted. 
Article  46  is  read : 

The  members  of  the  tribunal  are  entitled  to  put  questions  to  the  agents  and  counsel 
of  the  parties,  and  to  ask  them  for  explanations  on  doubtful  points. 

Neither  the  questions  put,  nor  the  remarks  made  by  members  of  the  tribunal  in  the 
course  of  the  discussions  can  be  regarded  as  an  expression  of  opinion  by  the  tribunal  in 
general,  or  by  its  members  in  particular. 

This  article  is  adopted. 
Article  47  is  read : 

The  tribunal  is  authorized  to  declare  its  competence  in  interpreting  the  compromis  as 
well  as  the  other  treaties  which  may  be  invoked  in  the  case,  and  in  applying  the  principles 
of  international  law. 


FIFTH  MEETING,  JULY  17,  1899  615 

This  article  is  adopted. 
Article  48  is  read : 

The  tribunal  is  entitled  to  issue  rules  of  procedure  for  the  conduct  of  the  case,  to 
decide  the  forms  and  time  in  which  each  party  must  conclude  its  arguments,  and  to  arrange 
all  the  formalities  required  for  dealing  with  the  evidence. 

This  article  is  adopted. 
Article  49  is  read : 

When  the  agents  and  counsel  of  the  parties  have  submitted  all  the  explanations  and 
evidence  in  support  of  their  case,  the  president  pronounces  the  discussion  closed. 

This  article  is  adopted. 
Article  50  is  read : 

The  deliberations  of  the  tribunal  take  place  in  private. 

Every  decision  is  taken  by  a  majority  of  the  members  of  the  tribunal. 

The  refusal  of  a  member  to  vote  must  be  recorded  in  the  minutes. 

This  article  is  adopted. 
Article  51  is  read: 

The  award,  given  by  a  majority  of  votes,  must  state  the  reasons  on  which  it  is  based. 
It  is  drawn  up  in  writing  and  signed  by  each  member  of  the  tribunal. 

His  Excellency  Count  Nigra  is  of  the  opinion  that  there  are  omissions  in  this 
article  v^rhich  should  be  supplied: 

( 1 )  The  arbitral  avv^ard  should  mention  also  the  dissenting  votes. 

(2)  The  tribunal  should  be  empowered  to  fix  the  time  within  which  the 
award  must  be  executed. 

Mr.  Martens  says  that,  as  regards  the  obligation  to  give  the  reasons  on 
which  the  award  is  based,  he  can  accept  this  requirement  as  a  jurisconsult,  but  as 
a  practical  man  he  must  reject  it.  He  desires  to  submit  to  the  Commission  certain 
observations  on  this  subject  which  he  thinks  deserve  very  careful  consideration. 
If  the  arbitrators  in  a  large  arbitral  tribunal  agree  in  recognizing  the  wrongs  com- 
mitted by  their  own  Government,  they  may  in  all  good  conscience  concur  in  the 
award  of  the  majority;  but  if  they  are  forced  to  give  the  reasons  for  this  award 
and  thus  to  criticize  the  policy  and  measures  of  their  Government,  they  will  find 
it  impossible  to  sign  the  award,  and  the  operation  of  arbitration  will  thus  be 
impeded.  As  for  the  setting  forth  of  the  reasons,  the  case  is  not  the  same  in 
the  matter  of  an  arbitral  award  as  in  the  matter  of  the  judgment  in  a  civil  suit. 
The  conditions  under  which  the  two  decisions  are  rendered  are  not  the  same,  and 
circumstances  may  arise  in  which  the  obligation  to  give  the  reasons  on  which  the 
award  is  based  would  be  an  obstacle  in  the  way  of  an  absolutely  just  decision. 

Mr,  Martens  adds  that  the  Anglo-American  tribunal  which  is  now  sitting  in 
Paris  has  not  admitted  the  obligation  in  question. 

As  the  committee  of  examination  does  not  share  his  point  of  view  on  this 

question,  Mr.  Martens  desires  to  explain  his  position  to  the  Commission. 

[25]   It  is  possible  that  the  latter  will  adopt  the  committee's  view;  but  in  that 

case  Mr.  Martens  will  console  himself  with  the  adage :     "  Dixi  et  salvavi 

animam  meant." 

Chevalier  Descamps  says  that  the  committee  was  not  in  agreement  on  this 


616  THIRD  COMMISSION 

question.  For  his  part,  he  thinks  that  the  requirement  to  give  the  reasons  on 
which  the  award  is  based  constitutes  a  fundamental  guaranty.  There  are  ques- 
tions which  cannot  be  settled  by  yes  or  no,  and  the  grounds  for  the  decision  justify 
the  award.  There  is  no  instance  of  an  award's  being  rendered  without  being 
accompanied  by  the  reasons  which  dictated  it. 

Chevalier  Descamps  does  not  believe  that  the  difificulties  pointed  out  by  Mr. 
Martens  are  insurmountable  and  irreconcilable  with  the  obligation  of  giving  the 
reasons  for  the  award.  The  forms  and  measures  are  left  to  the  judgment  of  the 
tribunal.  Moreover,  if  the  States  wish  to  provide  for  cases  in  which  there  might 
be  serious  objections  to  stating  the  reasons  on  which  the  award  is  based,  they  are 
free  to  allow  their  arbitrators  to  dispense  with  this  formality. 

Mr.  Martens  replies  that,  if  it  is  desired  to  leave  to  the  Governments  or  to 
the  arbitral  tribunals  themselves  the  right  to  decide  this  matter,  there  is  no  longer 
any  objection;  but  he  repeats  that  this  obligation  should  not  be  imposed  upon 
the  tribunal. 

Dr.  Zorn  warmly  supports  Mr.  Descamps'  opinion.  He  says  that  arbitral 
awards  must  be  legal  decisions,  and  a  legal  decision  without  the  reasons  on  which 
it  is  based  is  inconceivable.  The  reasons  may,  if  necessary,  be  set  forth  briefly; 
but  they  cannot  be  altogether  dispensed  with. 

Mr.  Rahusen  also  supports  Mr.  Descamps'  opinion.  He  thinks  that  the 
force  of  an  arbitral  decision  lies  in  the  grounds  on  which  it  is  based  rather  than  in 
the  decision  itself.  Furthermore,  it  would  be  impossible  to  found  a  complete 
international  jurisprudence  on  arbitral  awards  that  do  not  contain  the  reasons  in 
support  thereof. 

The  President  explains  that  the  obligation  of  giving  the  grounds  for  the 
award  does  not  imply  any  rule  as  to  the  form  in  which  they  must  be  presented. 
The  tribunal  will  be  at  liberty  to  formulate  the  reasons  briefly  or  at  length  as  it 
may  see  fit.     Mr.  Bourgeois  thinks  that  this  may  meet  Mr.  Martens'  wishes. 

Chevalier  Descamps  desires  to  explain  another  matter  brought  up  by  his 
Excellency  Count  Nigra  :  the  time  within  which  the  award  must  be  executed. 
There  will  be  cases  in  which  certain  States  may  postpone  the  execution  of  the 
arbitral  decision.  It  would  therefore  be  advisable  to  leave  it  to  the  judge  to 
determine  the  time,  a  right  which  he  will  take  advantage  of  or  not  according  to 
the  case, 

Mr.  Descamps  believes  that  it  would  be  well  for  the  committee  to  consider 
in  what  way  his  Excellency  Count  Nigra's  wishes  might  be  met  on  this  point. 

The  President  says  that  the  committee  of  examination  might  submit  a 
formula  on  the  second  reading. 

Mr.  Rolin  insists  that  the  reasons  for  the  vote  of  the  minority  be  given  in 
the  arbitral  award. 

Chevalier  Descamps  replies  that  this  would  give  the  appearance  of  there 
being  two  judgments  and  of  laying  the  dissent  of  the  arbitrators  before  public 
opinion.  The  dissenting  arbitrators  are  allowed  to  state  their  dissent,  but  it 
would  not  be  safe  to  go  further  than  that. 

His  Excellency  Count  Nigra  would  like  to  provide  for  the  case  of  an  arbi- 
trator's refusing  to  sign  the  award.  It  should  be  stated  that  such  refusal  does 
not  invalidate  the  award  nor  retard  its  execution. 

Chevalier  Descamps  says  that  this  is  manifest,  but  that  an  arbitrator  is 
bound  to  sign  the  award.  He  is  free  to  state  his  dissent;  but,  if  he  refuses  to 
sign,  he  is  failing  in  his  duty. 


FIFTH  MEETING,  JULY  17,  1899  617 

Mr.  Martens  recalls  that  the  provision  of  Article  51  has  been  adopted  by 
the  Anglo-American  tribunal  sitting  in  Paris. 

Mr.  Rolin,  though  still  of  the  opinion  that  it  would  be  preferable  if  the 
arbitrators  who  do  not  concur  in  the  award  were  invited  to  state  officially  the 
reasons  for  their  dissent,  does  not  consider  this  absolutely  necessary.  Mr.  Rolin 
therefore  refrains  from  presenting  a  formal  amendment.  He  presumes  that  the 
arbitrators  who  are  unable  to  give  the  reasons  for  their  views  on  the  spot,  after 
the  rendering  of  the  award,  will  not  fail  to  do  so  without  delay  in  their  reports 
to  the  Governments  or  even  in  the  press.  The  drawback  of  having  the  dissent 
of  the  arbitrators  brought  to  public  notice  will  therefore  not  be  completely  pre- 
vented, whatever  may  be  the  reporter's  opinion,  and  that  is  why  Mr.  Rolin 
deemed  it  preferable  to  limit  at  the  outset  the  object  and  the  scope  of  the  dissent 
by  inviting  the  arbitrators  who  do  not  concur  in  the  award  to  give  on  the  spot  the 
reasons  for  their  dissenting  vote. 

The  President  says  that  Article  51  is  adopted,  subject  to  his  Excellency  Count 
Nigra's  proposal  relative  to  the  time  of  execution. 

Article  52  is  read: 

The  award  is  read  out  at  a  public  sitting,  the  agents  and  counsel  of  the  parties  being 
present,  or  duly  summoned  to  attend. 

[26]  This  article  is  adopted. 
Article  53  is  read: 

The  award,  duly  pronounced  and  notified  to  the  agents  of  the  parties  at  variance,  settles 
the  dispute  definitively  and  without  appeal. 

This  article  is  adopted  with  the  omission,  requested  by  Mr.  Renault, 
of  the  words  "  at  variance." 

Article  54  and  Mr.  Asser's  proposal  are  read : 

Unless  stipulated  to  the  contrary  in  the  compromis,  revision  of  the  arbitral  award  may 
be  demanded  of  the  tribunal  which  rendered  it,  but  only  on  the  ground  of  the  discovery 
of  some  new  fact  which  is  of  a  nature  to  exercise  a  decisive  influence  upon  the  award  and 
which,  at  the  time  the  tribunal  entered  its  decree,  was  unknown  to  the  tribunal  and  to  the 
party  demanding  the  revision. 

Proceedings  for  revision  can  only  be  instituted  by  a  decision  of  the  tribunal  expressly 
recording  the  existence  of  the  new  fact,  recognizing  in  it  the  character  described  in  the 
preceding  paragraph,  and  declaring  the  demand  admissible  on  this  ground. 

No  demand  for  revision  can  be  received  unless  it  is  formulated  within  three  months 
following  the  notification  of  the  award. 

Mr.  Asser's  proposal: 

The  parties  can  reserve  in  the  compromis  the  right  to  demand  the 
revision  of  the  award. 

In  this  case,  and  unless  there  be  an  agreement  to  the  contrary,  the 
demand  must  be  addressed  to  the  tribunal  which  pronounces  the  award  and 
only  on  the  ground  of  the  discovery  of  some  new  fact  vi^hich  is  of  a  nature 
to  exercise  a  decisive  influence  upon  the  award  and  which,  at  the  time  the 
tribunal  entered  its  decree,  was  unknown  to  the  tribunal  and  to  the  party 
demanding  the  revision. 

Proceedings  for  revision  can  only  be  instituted  by  a  decision  of  the 
tribunal  expressly  recording  the  existence  of  the  new  fact,  recognizing  in  it 


618  THIRD  COMMISSION 

the  character  described  in  the  preceding  paragraph,  and  declaring  the  de- 
mand admissible  on  this  ground. 

No  demand  for  revision  can  be  received  unless  it  is  formulated  within 
six  months  following  the  notification  of  the  award. 

Mr.  Asset  explains  his  proposal.  The  principle  of  revision  was  adopted  by 
a  slight  majority  after  a  long  discussion  by  the  committee  of  examination.  It 
was  Mr.  Holls  who  had  inserted  it  in  his  project  for  a  permanent  tribunal  and 
who  had  energetically  and  lucidly  set  forth  the  great  importance  of  this  means 
of  revision.  Serious  objections  were  raised  in  opposition  to  his  arguments: 
The  award  once  rendered,  would  not  its  moral  force  be  diminished?  Again,  it 
was  observed  that  this  was  not  a  question  of  an  appeal,  but  of  an  exceptional 
case,  in  which  a  new  fact  had  been  discovered.  Mr.  Asser  long  hesitated  be- 
tween these  two  arguments.  Having  carefully  weighed  the  matter,  he  decided 
upon  a  compromise  system. 

It  is  here  a  question  of  principle  and  of  estabhshing  rules  of  procedure.  If 
Article  54  is  omitted,  the  very  idea  of  revision  is  rejected.  We  must  endeavor 
to  save  the  principle,  while  meeting  the  wishes  of  those  who  do  not  want  to 
weaken  a  priori,  by  means  of  a  treaty  provision,  the  moral  force  of  arbitral 
awards.  The  wording  he  proposes  does  not  imply  a  right  of  revision  as  a  natural 
consequence  in  every  arbitration  case,  but  it  allows  the  parties  to  reserve  this 
right  expressly  and,  if  they  do,  it  fixes  the  rules  and  procedure  to  be  followed. 

Mr.  Martens  delivers  the  following  address : 

During  the  entire  course  of  this  Conference  you  have  always  honored  me 
with  a  most  respectful  attention,  whenever  I  deemed  it  necessary  to  intervene  in 
the  discussion,  for  the  purpose  of  dissenting  or  explaining  the  ideas  which  have 
been  put  upon  the  program.     I  thank  you  most  sincerely. 

Permit  me  once  more  at  this  time  to  count  upon  such  good-will,  and  I  beg 
your  most  serious  attention,  because  the  question  which  now  occupies  us  is  one  of 
the  very  greatest  importance.  It  is  a  vital  question  for  the  entire  institution  of 
international  arbitration,  which  is  certainly  dear  to  all  of  our  hearts. 

The  honorable  gentleman  who  has  just  spoken,  my  friend  Mr.  Asser,  has  said 
that  it  is  necessary  to  save  the  principle  of  a  rehearing  of  the  arbitral  award.  I 
regret  infinitely  not  to  be  able  to  share  his  opinion.  I  am  a  member  of  the  society 
for  the  relief  of  the  shipwrecked  and  of  the  Red  Cross,  but  in  this  present  case  I 
deem  it  my  duty  to  be  cruel  and  inhuman.  I  cannot  lend  Article  55  a  helping 
hand,  and  I  hope  from  the  bottom  of  my  heart  that  it  may  be  wrecked  upon  the 
hOvSpitable  shores  of  Holland. 

But,  gentlemen,  in  what  does  the  importance  of  this  question  consist?  Is  it 
true  that  a  rehearing  of  a  judicial  award  based  upon  error  or  upon  considerations 
not  sufficiently  founded  is  not  desirable?  Ought  we  not,  on  the  contrary,  to  wish 
to  have  an  error  corrected  by  new  documents  or  new  facts  which  may  be  dis- 
covered after  the  close  of  the  arbitration? 

No,  gentlemen,  it  would  be  most  unsatisfactory  and  unfortunate  to  have  an 
arbitral  award,  duly  pronounced  by  an  international  tribunal,  subject  to  re- 
[27]  versal  by  a  new  judgment.  It  would  be  profoundly  regrettable  if  the  arbi- 
tral award  did  not  terminate,  finally  and  forever,  the  dispute  between  the 
litigating  nations,  but  should  provoke  new  dissensions,  inflame  the  passions  anew, 
and  menace  once  more  the  peace  of  the  world.  A  rehearing  of  the  arbitral 
award,  as  provided  for  in  Article  55,  must  necessarily  have  such  a  disastrous 


FIFTH  MEETING,  JULY  17,  1899  619 

effect.  There  should  not  be  left  the  slightest  doubt  on  this  point.  The  litigating 
Power  against  which  the  arbitral  award  has  been  pronounced  will  not  execute  it 
certainly  not  during  the  three  months,  and  it  will  make  every  effort  imaginable  to 
find  new  facts  or  documents.  The  litigation  will  not  have  been  ended,  but  it  will 
be  left  in  suspense  for  three  months  with  the  serious  aggravation  that  the  Gov- 
ernment and  the  nation  which  have  been  found  guilty  will  be  drawn  still  more 
into  recrimination  and  dangerous  reciprocal  accusations.  That  is  the  explana- 
tion of  the  significant  fact  that  in  the  committee  of  examination  Article  54  was 
adopted  by  only  5  votes  to  4. 

The  end  of  arbitration  is  to  terminate  the  controversy  absolutely.  The 
great  utility  of  arbitration  is  in  the  fact  that  from  the  moment  when  the  arbitral 
judgment  is  duly  pronounced  everything  is  finished,  and  nothing  but  bad  faith 
can  attack  it.  Never  can  an  objection  be  raised  against  the  execution  of  an 
arbitral  award.  Now,  if  we  accept  the  principle  of  a  rehearing,  what  will  be 
the  role  of  the  arbitrators  before  and  after  the  award?  At  the  present  time 
they  are  able  to  end  forever  an  international  dispute,  and  experience  has  shown 
that  as  soon  as  the  award  has  been  rendered,  newspapers,  legislative  chambers, 
public  opinion,  all  bow  in  silence  to  the  decision  of  the  arbitrators. 

If,  on  the  contrary,  it  is  known  that  the  award  is  suspended  for  three  months, 
the  State  against  which  judgment  has  been  given  will  do  its  utmost  to  find  a  new 
document  or  fact. 

In  the  meantime  the  judgment  will  be  delivered  over  to  the  wrangling  of 
public  opinion.  It  will  not  settle  or  put  an  end  to  the  matter.  On  the  contrary, 
it  will  raise  a  storm  in  press  and  parliament.  Everything  will  be  attacked  —  the 
arbitrators,  the  hostile  Government,  and  above  all  the  home  Government.  They 
will  be  accused  of  having  held  back  documents  and  concealed  new  facts. 

For  three  months  the  discussion  upon  the  judgment  will  be  open.  Never 
can  a  judgment  given  under  such  conditions  have  the  moral  binding  force  which  is 
the  very  essence  of  arbitration. 

Moreover,  the  arbitrators  will  not  have  the  same  feeling  of  responsibility 
as  when  by  one  word  they  are  able  to  terminate  a  controversy  between  two 
nations. 

This  idea  of  a  rehearing  is  the  most  fatal  blow  which  could  be  struck  against 
the  idea  of  arbitration.  Apropos  of  my  remark  at  the  beginning  of  this  meeting, 
I  applied  to  myself  the  words  "  Dixi  et  salvavi  animam  meant." 

I  now  change  them  and  say  " Dixi  et  salvavi  arbitrationem" 

His  Excellency  Count  Nigra  remarks  that  the  Commission  is  confronted 
by  two  opinions,  both  of  them  too  absolute  in  character.  There  is  a  great  deal 
of  truth  in  Mr.  Martens'  arguments,  but  an  error  is  always  possible,  and  if 
there  has  really  been  an  error  that  is  manifest  to  public  opinion,  how  can  we 
require  that  it  be  sanctioned;  how  can  we  refuse  to  rectify  it?  On  the  other 
hand,  the  wording  of  Article  54  appears  to  be  too  broad  in  scope.  The  expres- 
sion "  of  some  new  fact  which  is  of  a  nature  to  exercise  a  decisive  influence  " 
is  not  precise  enough  and  does  not  sufficiently  define  the  cases  subject  to  revi- 
sion. 

The  instructions  of  the  Italian  Government  compel  it  to  favor  revision.  If 
the  principle  of  revision  is  retained,  it  seems  to  it  preferable  to  adopt  the  text 
of  the  Italo-Argentine  treaty  (Article  13),  which  limits  the  grounds  for  revision 
to  the  facts  already  presented  in  the  cause  in  the  two  following  cases : 


620  THIRD  COMMISSION 

(1)  If  the  award  has  been  rendered  on  the  strength  of  a  forged  or  erroneous 
document. 

(2)  If  the  award,  in  whole  or  in  part,  is  the  consequence  of  a  positive  or 
negative  error  of  fact,  resulting  from  the  acts  or  documents  in  the  case. 

Mr.  Hells  answers  Mr.  Martens  in  the  following  speech,  a  running  summary 
of  which  is  made  by  Baron  d'Estournelles  : 

I  cannot  forbear  to  express,  at  the  outset,  the  great  reluctance  and  hesita- 
tion with  which  I  find  myself  in  disagreement,  on  a  question  of  such  great  im- 
portance, with  the  gentleman  who  may  perhaps  be  called  the  most  eminent  rep- 
resentative in  the  entire  world  of  the  idea  of  arbitration,  the  president  of  the 
one  tribunal  of  arbitration  which  is  sitting  at  present,  our  most  honorable  colleague 
from  Russia,  Mr.  Martens.  If  there  were  in  my  mind  the  slightest  doubt  as 
to  the  soundness  of  the  proposition  which  is  at  present  before  us,  I  would  be  in- 
clined to  dismiss  all  further  consideration  and  assent  to  the  opinion  of  an  author- 
ity so  eminent,  especially  when  that  opinion  is  expressed  with  so  much  force  and 
eloquence.  But  all  of  my  hesitation  does  not  prevent  me  from  expressing  my 
very  great  surprise  at  the  arguments  of  which  Mr.  Martens  has  just  made  use. 
In  effect,  they  show  to  my  mind  that  he  has  completely  misunderstood  the  proposi- 
tion which  has  been  inserted  at  the  request  of  the  United  States  of  America  into 

the  code  of  arbitral  procedure. 
[28]  I  agree  most  emphatically  with  all  that  Mr.  Martens  has  said  about  the 
necessity  of  putting  a  definite  end  to  international  litigation.  In  diflFerences 
between  States,  the  maxim  "  interesse  popiili  tit  sit  finis  litium  "  is  even  more 
true  than  in  those  between  individuals.  The  supreme  end  of  arbitration  is,  as 
Mr.  Martens  said,  to  settle  definitely  the  questions  upon  which  recourse  has 
been  had,  and  everything  which  unreasonably  retards  the  decision  or  leaves  it  in 
suspense  will  be  objected  to,  most  decidedly,  by  the  delegates  of  the  United  States 
as  well  as  by  him. 

Moreover,  Mr.  President,  our  proposition  for  a  rehearing  is  by  no  means 
based  upon  a  fantastic  idea,  as  though  it  were  possible  to  evade  or  correct  all  the 
errors  which  must  occasionally  slip  into  arbitral  decisions.  We  by  no  means 
ignore  the  fact  that  error  is  and  always  will  be  an  inherent  element  in  every  human 
institution  or  decision. 

Our  point  of  view  is  eminently  practical,  and  this  is  the  theory  upon  which 
the  article  proposed  by  us  reposes.  It  is  above  all  extremely  desirable  and  even 
necessary  that  the  project  of  arbitration  which  this  Conference  is  about  to  propose 
to  the  world  should  provide  for  the  possibility  of  rectifying  evident  errors,  in  a 
regular  and  legal  manner,  without  incurring  the  danger  of  having  the  decision 
repudiated  by  the  aggrieved  party. 

Permit  me  to  say  at  this  point  that  the  importance  of  our  article  does  by 
no  means  solely  repose  upon  its  practical  efifect  in  each  case,  but  perhaps  even 
more  in  the  circumstances  that  it  will  constitute  an  important  feature  of  the 
general  project  of  arbitration  which  is  being  elaborated  by  the  Conference. 
Everything  which  we  are  creating  here  has  a  general,  voluntary,  and  facultative 
character.  We  are  not  occupied  at  the  present  time  with  rules  for  any  particular 
difference  whatever.  It  will  soon  be  the  duty  of  the  members  of  this  Conference 
to  appear  before  their  different  peoples  and  explain  to  them  the  projects  which  we 
have  elaborated  with  so  much  labor  and  so  much  care.  According  to  the  view 
of  the  American  delegation,  this  project  will  contain  a  fatal  omission  if  it  does 
not  provide  any  method  whatever  for  dealing  with  an  evident  error.     For  we 


FIFTH  MEETING,  JULY  17,  1899  621 

may  be  sure  that  if  this  article  shall  not  be  adopted,  and  a  manifest  error  shall 
hereafter  be  discovered,  the  aggrieved  party  which  loses  its  case  will  not  accept 
the  decision  with  good  grace,  even  if  it  may  yield  to  force.  There  is  a  limit  to 
the  principle  established  by  Mr.  Martens,  that  the  chief  end  of  arbitration  is  to 
settle  forever  the  questions  about  which  it  has  been  invoked.  That  limit  has  been 
well  declared  by  our  American  statesman,  Abraham  Lincoln,  in  his  celebrated 
saying,  "  Nothing  is  settled  until  it  is  settled  right."  Our  article  seems  to  find  a 
golden  mean  between  two  extreme  dangers,  that  of  perpetuating  an  injustice,  and 
that  of  leaving  a  difference  unsettled. 

The  objection  has  been  raised  that  the  new  fact  might  be  discovered  one 
day  after  the  expiration  of  the  term  fixed  by  the  article.  But  this  possibility  is  an 
inconvenience  which  exists  always  when  an  arbitrary  term  is  fixed  for  any  end 
whatever,  and  it  will  exist  in  equal  measure  if  we  adopt  a  period  of  six  months 
in  place  of  three.  The  theory  upon  which  our  article  is  based,  so  far  as  this 
point  is  concerned,  is  that  immediately  after  the  rendering  of  the  decision  it  is 
subjected  to  criticisms  and  investigations  of  the  most  minute  character,  and  then, 
if  ever,  is  the  opportunity  for  discovering  new  facts  or  important  errors. 

It  may  well  be,  "as  Mr.  Martens  has  said,  that  the  criticism  to  which  the 
arbitral  decision  will  be  subjected  in  this  manner  will  take  the  character  of  an 
attack,  and  may  cause  discussion  in  the  journals  and  pamphlets  in  a  form  most 
undesirable.  But,  on  the  other  hand,  it  is  also  true  that  the  decision  will  be 
examined  most  minutely  by  all  the  experts  of  international  law  in  the  entire  world, 
and  by  all  those  who,  on  account  of  their  public  or  private  position,  have  followed 
the  proceedings  of  the  litigation  and  who  are  interested  in  it  and  in  its  result. 
This  is  the  best  guaranty  possible  for  the  discovery  of  any  hidden  fact  which 
might  have  the  effect  of  correcting  an  error,  or  of  making  reparation  for  an 
injustice. 

New  facts  cannot  be  forged  nor  manufactured,  at  least  not  by  civilized 
Governments.  In  fact,  every  Government  will  hesitate  to  expose  its  country  to 
the  humiliation  which  would  undoubtedly  attach  to  an  unsuccessful  attempt  for  a 
rehearing  of  the  litigation  upon  a  pretended  discovery  of  new  facts,  the  existence 
of  which  would  be  denied  by  the  tribunal. 

Moreover,  one  should  not  lose  sight  of  the  fact  that  for  the  purpose  of  having 
a  rehearing,  the  very  tribunal,  composed  of  the  same  judges  who  have  pro- 
nounced the  award  must  declare  that  a  manifest  error  has  been  committed. 
This  is  saying,  in  other  words,  that  the  new  fact  which  has  been  discovered  is  of 
a  nature  to  have  influenced  the  decision  of  the  tribunal. 

Before  the  decision  has  been  rendered  it  is  not  always  possible  to  know  what 
species  of  fact  or  what  argumentation  has  made  the  greatest  impression  upon 
the  judges  and  has  determined  their  decision. 

Take,  for  example,  the  question  in  controversy  at  this  moment  before  the 
court  of  arbitration  of  which  our  honorable  colleague  from  Russia  is  acting  so 
worthily  as  president  —  the  question  of  the  frontier  between  British  Guiana  and 
Venezuela.  In  this  case  the  delay  of  three  or  six  months  could  not  be  truly 
called  anything  but  minimal,  in  view  of  the  fact  that  this  difference  has  ex- 
[29]  isted  and  gone  on  for  three  or  four  years,  and,  in  a  form  more  or  less  ob- 
scure, for  more  than  eighty  years.  It  would  therefore  be  unimportant 
whether  the  decision  should  be  rendered  on  the  first  of  October  or  the  first  of 
January,  by  comparison  with  the  danger  arising  from  a  manifestly  erroneous  or 
unjust  decision.     Among  other  things  this  controversy  implies  the  interpretation 


622  THIRD  COMMISSION 

of  treaties  made  more  than  two  hundred  and  fifty  years  ago;  it  includes  a  great 
number  of  historical  precedents,  or  questions  about  colonization,  of  jurisdiction 
over  the  barbarous  tribes,  as  well  as  questions  of  the  weight  and  authority  to  be 
given  to  different  maps.  Upon  these  latter  both  parties  will  lay  great  stress,  in 
order  to  prove  that  their  contentions  have  already  been  recognized  and  admitted. 
Up  to  the  moment  of  the  decision  of  the  tribunal  it  will  be  impossible  to  know 
what  kind  of  facts  and  what  argumentation  have  determined  the  award.  Now  the 
seeking  of  new  facts  is  limited  to  that  category.  If  that  inquiry  should  be  suc- 
cessful, for  example,  if  a  new  map  or  a  new  document  of  incontestable  and  un- 
questioned authority  should  be  found,  it  is  evident  that  the  interested  party  would 
refuse  to  submit  to  an  award  which  could  not  be  rectified  in  a  legal  and  regular 
manner. 

I  confess  that  I  was  greatly  astonished  to  hear  Mr.  Martens  say  that  the 
moral  authority  of  the  Court  of  Arbitration  would  be  impaired  by  our  article, 
and  that  the  sentiment  of  responsibility  would  disappear  in  the  minds  of  the  arbi- 
trators. On  the  contrary,  I  maintain  that  the  moral  authority  of  the  judgment 
will  be  enhanced  by  the  fact  that  there  is  in  existence  a  provision  for  correcting 
errors,  of  which  the  losing  party  may  take  advantage,  during  a  term  which 
should  not  be  too  long,  and  that  at  the  end  of  that  term  the  civilized  world  ought 
to  admit,  and  surely  will  admit,  that  substantial  justice  was  done  between  the  two 
parties.  Furthermore,  the  responsibility  of  the  arbitrators  is  enhanced  rather 
than  diminished  by  their  power  and  their  duty  to  reconvene  again  upon  their  judg- 
ment in  a  proper  case. 

It  seems  to  me  that  Mr.  Martens  most  assuredly  made  a  mistake  in  saying 
that  tradition  and  the  force  of  precedent  is  opposed  to  a  rehearing  in  cases  of 
arbitration. 

I  must  admit  that  in  all  the  treaties  of  arbitration  for  special  cases  up  to  this 
time,  there  has  not  been  a  provision  for  a  rehearing,  and  in  the  particular  special 
treaties  of  the  future  there  will  no  longer  be  any  necessity  for  it.  The  reason  for 
this  is  that  the  entire  idea  of  arbitration  is  relatively  new,  and  that  it  has  hitherto 
been  considered  only  as  a  temporary  method  of  settling  controversies  as  they 
arose.  The  only  general  treaty  of  arbitration  which  has  been  ratified,  and  which 
is  to-day  in  force,  is  that  concluded  between  the  Kingdom  of  Italy  and  the  Argen- 
tine Republic.  This  provides  for  a  rehearing,  showing  the  tendency  of  public 
opinion  and  also  of  the  most  competent  opinion  of  experts  in  international  law. 
But,  as  I  have  already  said,  our  duty  in  this  Conference  is  not  to  legislate  for 
particular  cases,  but  to  uphold  an  ideal,  to  declare  to  the  world  that  which  the 
representatives  of  all  the  civilized  nations  consider  desirable  and  practically  at- 
tainable. We  cannot  possibly  put  professional  regularity  or  pedantic  rules  of 
procedure  above  the  attainment  of  substantial  justice.  We  have  succeeded,  after 
much  labor  and  by  reason  of  mutual  concessions,  in  elaborating  a  project  for 
the  peaceable  settlement  of  international  conflicts.  It  is  of  the  last  importance 
that  this  project  should  contain,  however  simply,  at  least  all  essential  features 
guaranteeing  in  the  greatest  possible  measure  international  justice. 

The  representatives  of  the  United  States  of  America  considering  this  article, 
or  some  other  provision  equally  efficacious  to  rectify  manifest  errors,  as  an  essen- 
tial part  of  an  acceptable  project,  would  have  to  ask  for  new  instructions  from 
their  Government,  giving  them  power  to  join  their  colleagues  of  the  Conference 
in  any  plan  which  should  not  contain  a  similar  provision.     It  is  for  this  reason 


FIFTH  MEETING,  JULY  17,  1899  623 

that  they  make  a  most  warm  and  urgent  appeal  to  the  committee  to  leave  intact 
the  principle  expressed  in  the  article  proposed  in  the  name  of  the  Government  of 
the  United  States. 

Chevalier  Descamps  has  listened  very  attentively  to  the  two  series  of  argu- 
ments in  the  matter  of  revision. 

In  his  opinion,  the  difficulty  arises  from  the  conflict  of  principles,  equally 
worthy  of  respect,  that  have  been  advanced  by  both  sides. 

Justice  must  be  done;  how  then  can  we  accept  the  sanction  of  an  evident 
error  ? 

Suits  between  nations  must  be  terminated  and  differences  between  them  must 
not  be  allowed  to  drag  on  indefinitely.  How  are  we  to  attain  this  result  if  we 
leave  the  door  open  for  new  judgments? 

The  advocates  of  revision  have  the  nobler  and  finer  side.  Their  conception 
of  justice  is  perhaps  loftier  than  that  of  their  opponents;  but  the  latter  are  espe- 
cially impressed  with  the  fallibility  of  all  human  judgments  and  think  that  we 
must  not  compromise  the  force  and  stability  of  that  justice,  in  order  to  redress 
exceptional  errors.  Is  it  not  to  be  feared  that  under  the  pretext  of  preserving 
justice  in  rare  cases,  we  may  compromise  it  in  all  cases? 

The  partisans  of  revision  do  not  appear  to  have  placed  the  question  where 
it  belongs.  In  the  domain  of  general  rules  applying  to  all  controversies  be- 
tween States,  should  we  formulate  a  principle  that  threatens  to  undermine 
[30]  the  very  institution  of  arbitration?  The  more  natural  thing  would  seem  to 
be  to  set  forth  in  an  international  code  only  the  principles  that  strengthen 
the  institution.  Contracting  parties  who  have  scruples,  from  the  point  of  view  of 
justice,  similar  to  those  of  the  United  States  should  provide  for  revision  in  a 
special  compromis.  No  revision,  which  is  in  conformity  with  the  efficacy  of  arbi- 
tration, must  be  the  rule  and  revision  the  exception. 

By  admitting  revision  as  a  general  rule  we  should  be  rendering  the  Govern- 
ments a  very  poor  service :  they  would  be  threatened  with  the  danger  of  no  longer 
being  masters  at  home ;  their  hands  would  be  forced ;  popular  opinion  would  want 
them  to  invent  new  facts  in  order  to  reopen  an  arbitration  case  that  had  been 
decided  against  them. 

The  Reporter  thinks  therefore  that  it  would  be  dangerous  and  difficult  to 
introduce  a  provision  similar  to  Article  54  in  a  general  code  of  arbitration.  He 
hopes  that  Mr.  Asser's  moderated  reading  will  not  be  admitted.  However,  if 
it  should  become  a  question  of  obtaining  unanimity,  he  would  support  Mr. 
Asser's  proposal  in  a  conciliatory  spirit. 

Mr.  Martens  asks  permission  to  put  certain  questions. 

What  will  the  situation  of  the  arbitrators  be  during  the  suspensive  period 
of  three  or  six  months?  If  the  Government  which  has  not  won  the  case,  harassed 
and  summoned  by  public  opinion  to  find  a  new  fact,  succeeds  in  reopening  the 
suit,  where  will  it  find  arbitrators? 

The  members  of  the  arbitral  tribunal  are  scattered  here  and  there ;  they  may 
be  absent,  sick,  dead.     What  will  it  do  then? 

We  must  distinguish  between  two  points  of  view :  from  that  of  the  juriscon- 
sult there  is  no  doubt  that  revision  and  even  appeal  should  be  demanded.  From 
that  of  the  practical  man  the  love  of  peace  carries  the  day.  To  preserve  peace 
he  would  have  all  disputes  cut  short  by  some  radical  means.  The  pacification  of 
two  nations  is  so  important  in  his  eyes  that  he  does  not  wish  to  run  the  risk  of 


624  THIRD  COMMISSION 

jeopardizing  it  in  order  to  protect  certain  material  interests  that  may  possibly  be 
injured. 

He  feels  it  necessary  to  take  this  last  point  of  view  and  therefore  asks  the 
Commission  to  vote  against  Article  54. 

Mr.  Seth  Low  delivers  the  following  address,  which  Mr.  Raffalovich  sums 
up  in  French : 

In  the  organization  of  ordinary  justice  in  almost  all  the  countries  represented 
here,  if  not  in  all,  a  recourse  for  the  purpose  of  rectifying  errors  has  been  pro- 
vided. This  precaution  has  been  taken  because  experience  has  shown  that  such 
recourse,  or  rehearing,  or  revision  increases  the  chances  of  doing  substantial  jus- 
tice between  men. 

I  know  that  our  international  arbitration  is  not  like  the  questions  of  ordinary 
justice.  It  does  imply,  as  Mr.  Martens  has  said,  the  idea  of  ending  international 
controversies  in  the  interest  of  peace,  even  if  the  solution  may  be  imperfect. 

But  the  necessity  of  accepting  in  such  a  large  measure  this  imperfection  is 
precisely  the  weakness,  and  not  the  strength,  of  arbitration. 

I  recognize,  as  some  one  has  said,  that  all  arbitration  which  has  occurred  up 
to  this  time  has  been  in  virtue  of  an  agreement  that  has  not  foreseen  or  provided 
for  a.  rehearing.  But,  on  the  other  hand,  the  Conference  will  remember  that  in 
the  only  two  treaties  which  contain  a  clause  for  permanent  arbitration  —  the  Italo- 
Argcntine  treaty,  to  which  reference  has  already  been  made,  and  the  Anglo- 
American  treaty,  which  was  not  ratified  —  a  provision  was  inserted  for  the  pur- 
pose of  permitting  a  rehearing  under  certain  determined  conditions. 

This  signifies,  as  I  suppose,  that  a  system  of  permanent  arbitration  as  dis- 
tinct from  special  arbitration  in  isolated  cases  necessarily  implies  the  idea  of 
making  justice  as  perfect  as  possible,  and  that  this  idea  should  be  balanced  with 
the  desire  of  terminating  the  controversy. 

I  have  confidence  and  hope  that  this  Conference  will  receive  and  adopt  the 
idea  of  a  rehearing  with  the  necessary  precaution,  for  it  is  certain  that  arbitral 
procedure  should  admit  the  possibility  of  error,  if  the  great  number  of  judg- 
ments of  arbitration  are  to  develop  in  the  future  into  one  grand  system  of  inter- 
national justice. 

Mr.  Asser  recalls  the  remark  made  by  one  of  the  previous  speakers,  "  Radi- 
cal measures  are  the  best."  This  may  be  so  in  a  parliament,  where  the  majority 
rules,  but  in  an  assembly  like  this,  which  may  be  termed  an  international  parlia- 
ment, we  are  often  called  upon  to  reach  a  compromise. 

That  is  the  aim  of  his  proposal.  He  has  taken  into  account  all  the  good 
reasons  put  forward  by  both  sides.  The  partisans  of  revision  will  find  their 
wishes  met  by  an  article  that  determines  the  procedure  to  be  followed  in  a  second 
hearing  and  designates  it  as  a  practical  means  within  the  reach  of  all  the  States. 

The  partisans  of  no  revision  also  will  be  satisfied  by  the  exclusion  of  revi- 
sion unless  there  is  a  special  clause  in  the  compromis.  If  the  compromis  contains 
nothing  on  the  subject,  the  arbitral  award  will  be  irrevocable. 

Mr.  Corragioni  d'Orelli  states  that  the  delegation  of  Siam  could  not  vote  for 
[31]  the  principle  of  revision  either  in  the  form  proposed  by  the  American  dele- 
gates or  in  that  proposed  by  Mr.  Asser,  unless  the  time  within  which  revi- 
sion may  be  demanded  were  fixed  at  six  months  instead  of  three.  He  does  not 
need  to  dwell  upon  the  reasons  for  this  restriction.  Difficulties  may  arise  as  a 
result  of  the  distance  at  which  the  arbitral  tribunal  is  sitting.     The  time  within 


FIFTH  MEETING,  JULY  17,  1899  625 

which  revision  may  be  demanded  is  calculated  from  the  date  of  notification,  which 
is  given  in  the  city  where  the  tribunal  is  meeting. 

Jonkheer  van  Karnebeek  has  listened  attentively  to  what  Messrs.  Holls 
and  Low  have  had  to  say.  His  opinion  has  not  changed  and  he  remains  con- 
vinced that  revision  is  dangerous.  Moreover,  all  the  arguments  of  the  American 
delegates  concerned  not  a  revision,  but  an  appeal.  Now,  we  are  almost  all  of  the 
opinion  that  there  can  be  no  question  of  appeal. 

Another  objection  is  the  determination  of  the  procedure  to  be  followed. 
There  is  mention  of  a  "  new  fact " ;  but  there  is  nothing  more  difficult  to  define. 
Every  legislation  has  been  confronted  by  this  obstacle.  Let  us  not  introduce  in 
international  relations  difficulties  that  have  already  proved  so  great  in  municipal 
law. 

Although  he  remains  convinced  of  the  danger  of  revision,  he  would  never- 
theless favor  the  compromise  proposal  of  Mr.  Asser;  but  in  that  case  the  delay 
of  6  months  must  be  reduced  to  3  months,  since  the  former  would  leave  the  pend- 
ing questions  open  too  long. 

Mr.  Holls  states  that  the  American  delegation  concurs  in  the  wording  of 
Article  54  proposed  by  Mr.  Asser. 

But  it  proposes  an  amendment  to  the  effect  that  the  time  shall  be  determined 
in  every  case  by  the  parties. 

Chevalier  Descamps,  Mr.  Corragioni  d'Orelli,  Mr.  Asser,  Mr.  Martens, 
and  Count  Nigra  concur  in  this  amendment. 

Mr.  Asser's  proposal  is  thus  amended  and  adopted  unanimously. 

Baron  Bildt  points  out  an  omission :  the  text  does  not  take  into  account  a  new 
fact  that  may  come  to  light  between  the  close  of  the  pleadings  and  the  rendering 
of  the  judgment. 

The  President  says  that  this  very  proper  observation  will  be  taken  into 
account. 

Article  55  is  read: 

The  award  is  only  binding  on  the  parties  who  concluded  the  compromis. 

When  there  is  a  question  of  interpreting  a  convention  to  which  Powers  other  than 
those  concerned  in  the  dispute  are  parties,  the  latter  notify  to  the  former  the  compromis 
they  have  concluded.  Each  of  these  Powers  has  the  right  to  intervene  in  the  case.  If  one 
or  more  of  them  avail  themselves  of  this  right,  the  interpretation  contained  in  the  award  is 
equally  binding  on  them. 

This  article  is  adopted. 
Article  56  is  read : 

Each  party  pays  its  own  expenses  and  an  equal  share  of  the  honoraria  of  the  arbi- 
trators and  of  the  expenses  of  the  tribunal. 

Mr.  Holls  reserves  his  opinion  with  regard  to  this  article  until  the  second 
reading. 

This  article  is  adopted. 

It  is  decided  that  the  committee  of  examination  shall  meet  on  Tuesday  at  2 
o'clock  and  the  Third  Commission  on  Wednesday  at  10  o'clock. 

The  meeting  adjourns. 


SIXTH    MEETING 

JULY  19,  1899 


Mr.  Leon  Bourgeois  presiding. 

Proofs  of  the  minutes  of  the  fifth  meeting  are  distributed  among  the  delegates, 
■and  the  minutes  are  adopted  subject  to  such  corrections  as  they  may  subsequently 
find  necessary. 

The  discussion  opens  on  Section  3,  which  had  been  reserved  on  the  first 
|32]   reading  of  the  draft,  in  order  to  allow  the  delegates  of  Roumania,  Serbia, 
and  Greece  to  secure  instructions  from  their  Governments. 

The  first  delegate  of  Roumania,  Mr.  Beldiman,  speaks  as  follows : 

The  task  which  devolves  upon  me  to-day  is  not  an  easy  one,  I  must  admit,  for 
it  runs  counter  to  the  current  of  opinion  which  has  grown  in  this  high  assembly 
under  the  influence  of  authorities  that  are  incontestable,  authorities  of  the  first 
magnitude  in  the  matter  of  international  law.  I  even  anticipate  that  we  shall 
have  against  us  all  the  notable  figures  in  the  science  of  international  law  whom  we 
are  so  justly  proud  to  see  among  the  members  of  the  Conference.  I  confess 
that  under  these  conditions  the  contest  would  be  a  very  unequal  one,  if  it  were  to  be 
exclusively  in  the  domain  of  this  science.  But  I  am  encouraged  by  the  fact 
that  when  it  is  a  question  of  concluding  international  stipulations  which  directly 
afifect  the  mutual  relations  of  States,  the  doctrine  of  international  law  cannot  of 
itself  decide  in  the  last  resort;  it  must  be  in  harmony  with  the  legitimate  inter- 
est of  the  policies  of  the  States  concerned. 

Before  taking  up  these  questions,  I  desire  first  of  all  to  state,  in  the  name 
■of  the  Royal  Government,  that  after  mature  reflection  it  is  not  prepared  to  ad- 
here to  the  articles  concerning  international  commissions  of  inquiry  provided 
for  in  Section  3  of  the  draft  Convention. 

This  decision  rests  upon  considerations  of  various  kinds  which  I  shall  take 
the  liberty  of  setting  forth  at  greater  length,  in  view  of  the  seriousness  of  this 
question  to  us. 

While  sincerely  regretting  that  we  are  obliged  to  declare  against  the  new 
institution  of  international  law,  which  the  Commission  is  endeavoring  to  create, 
I  am,  on  the  other  hand,  happy  to  note  that  Roumania  is  not  the  only  country 
to  raise  serious  objections  in  the  matter  of  principle  on  this  subject. 

Our  point  of  view  is  entirely  shared  by  both  Greece  and  Serbia,  and  the 
Governments  of  these  States,  which  have  so  many  interests  in  common  with  us, 
likewise  think  that  the  draft  Convention  would  gain  much  if  it  did  not  contain 
the  section  concerning  international  commissions  of  inquiry. 

As  for  the  exposition  which  I  shall  have  the  honor  to  set  forth,  it  is  of 
^course  understood  that  I  am  speaking  only  in  the  name  of  my  Government. 

626 


SIXTH  MEETING,  JULY  19,  1899  627 

I  repeat,  gentlemen,  the  Royal  Government  did  not  resolve  upon  its  course 
until  after  long  and  mature  reflection.  It  considered  all  eventualities ;  it  would 
certainly  have  preferred  not  to  intervene  in  these  debates  in  such  an  incisive 
manner.  But  the  responsibility  it  would  incur  by  accepting  these  provisions  was 
too  great  and  it  could  not  adhere  to  a  stipulation  which  it  considers  prejudicial 
to  the  rights  and  interests  of  our  kingdom.  It  is  therefore  in  the  performance 
of  an  imperative  duty  that  the  Roumanian  Government  has  given  me  the  in- 
structions which  I  have  the  honor  of  interpreting. 

It  is  also  for  the  same  reasons  that  I  ask  you  to  allow  me  to  go  back  a  few 
years  and  to  dwell  upon  the  general  spirit  which  animates  my  Government  with 
regard  to  the  great  and  noble  work  for  which  we  are  here  assembled. 

Since  we  are  solicitous  that  there  shall  not  be  the  slightest  doubt  as  to  the 
attitude  of  Roumania  on  this  occasion,  I  shall  call  your  attention  to  certain 
official  documents. 

In  the  first  place,  allow  me  to  quote  briefly  from  the  reply  of  the  Roumanian 
Government,  dated  January  14/26,  1899,  to  the  circular  of  his  Excellency  Count 
MouRAviEFF  of  December  30  last,  which  reply  was  signed  by  Mr.  Demetrius 
Sturdza,  then  President  of  the  Council  and  Minister  of  Foreign  AflFairs. 

After  recalling  the  profound  impression,  the  great  furor,  which  the  noble 
and  magnanimous  initiative  of  His  Majesty  the  Emperor  Nicholas  II  had  pro- 
duced throughout  the  world,  the  note  sums  up  the  three  dominant  ideas  of  the 
program  which  his  Excellency  Count  Mouravieff  communicated  to  the  cabinets 
and  which  has  become  the  basis  of  the  work  of  the  Conference. 

The  Minister  continues : 

The  Government  of  His  Majesty  King  Charles,  my  august  master,  on 
analyzing  with  the  most  sympathetic  attention  the  program  in  question,  can- 
not but  adhere  thereto  and  express  an  eager  and  sincere  desire  to  see  it 
favorably  received  by  all  the  States  invited  to  the  Conference. 

The  note  concludes  as  follows : 

Be  good  enough,  therefore,  Mr.  Minister,  to  say  to  Count  Mouravieff 
that  the  Royal  Government,  which  is  so  deeply  interested  in  the  maintenance 
of  peace,  cannot  but  adhere  with  the  keenest  satisfaction  to  the  program 
proposed  as  a  basis  for  the  discussions  of  the  Conference,  and  to  inform  his 
Excellency  at  the  same  time  of  the  points  of  view  which  I  have  just  set 
forth  and  which  aim  to  spread  continually  and  in  a  practical  manner  among 
the  peoples  of  the  earth  the  principle  of  the  solidarity  of  States,  which  is 
indispensable  to  the  maintenance  of  universal  peace,  which  His  Majesty 
Emperor  Nicholas  II  considers  one  of  the  most  deeply  felt  and  urgent 
needs  of  the  prosperous  life  of  nations. 

The  instructions  relative  to  the  participation  of  the  Roumanian  delegates  in 
the  work  of  the  Conference  were  given  to  us  by  Mr.  D.  Sturdza's  successor  in 
the  Department  of  Foreign  Affairs,  Minister  John  Lahovari,  under  date  of 

April  28/May  10,  1899. 
[33]   They  begin  as  follows: 

To  the  Envoys  :  Now  that  the  deliberations  of  the  Conference  that  is  to 
meet  at  The  Hague  as  the  result  of  the  generous  initiative  of  His  Majesty 
the  Emperor  of  Russia  are  about  to  open,  with  a  view  to  ensuring  to  all 
peoples  by  an  international  agreement  the  benefits  of  a  real  and  lasting  peace, 


628  THIRD  COMMISSION 

and  before  all  else  to  put  an  end  to  the  progressive  growth  of  modern  arma- 
ments, it  is  necessary,  in  the  first  place,  to  point  out  to  you  in  a  general  way 
the  spirit  in  which  the  Government  of  His  Majesty  the  King  of  Roumania 
has  accepted  the  invitation  extended  to  him  and  from  which  you  must  draw 
your  inspiration  in  participating  in  the  proceedings. 

As  regards  the  goal  upon  which  the  Emperor  Nicholas  has  fixed  his 
gaze  and  which  will  entitle  that  sovereign  for  all  time  to  the  gratitude  of 
history,  the  Royal  Government,  in  harmony,  I  am  pleased  to  state,  with  all 
peoples  and  all  Governments,  applauds  the  generous  views  of  His  Majesty 
and  will  endeavor  to  contribute  with  all  its  power  to  the  success  of  the  work 
of  the  Conference. 

Roumania  more  than  any  other  nation  needs  to  enjoy  for  a  long  time  to 
come  the  benefits  of  peace,  in  order  to  repair  the  injuries  which  long  centuries 
of  calamity  have  inflicted  upon  her.  The  wise,  well-balanced,  and  peaceful 
policy  from  which  she  has  never  deviated  since  she  won  complete  independ- 
ence, her  constant  efforts  to  develop  her  resources,  the  great  works  that  she 
has  undertaken  in  every  corner  of  her  territory  are  the  surest  guaranties  of 
the  sentiments  that  animate  the  sovereign  and  the  nation. 

It  is  therefore  with  keen  satisfaction  and  the  most  sincere  desire  to  see 
the  labors  of  the  Conference  bring  forth  positive  and  eflFective  results  that 
we  are  sending  our  representatives  to  take  part  in  its  deliberations. 

And  further  on,  after  mentioning  the  natural  difficulties  which  will  necessarily 
follow  from  the  discussion  of  one  of  the  greatest  and  most  important  problems  in 
the  common  life  of  peoples,  our  Minister  goes  on  to  say : 

It  is  no  less  our  duty  to  endeavor  to  aid  sincerely  the  efforts  of  those 
who  have  undertaken  so  noble  a  task,  to  respond  with  eagerness  to  the  ap- 
peal addressed  to  the  secondary  Powers  of  Europe.  And  since  in  questions 
which  raise  so  many  and  such  great  difficulties  the  most  complete  solutions 
are  not  the  most  practicable,  I  think  that  in  a  general  way  you  should  always 
try  to  support  with  word  and  vote  those  proposals  which,  though  they  may  not 
be  the  most  desirable,  are  the  most  acceptable  to  all. 

Such,  gentlemen,  is  the  general  spirit  which  from  the  start  has  animated  my 
Government  in  the  matter  of  the  important  humanitarian  problems  brought  up 
by  the  generous  initiative  of  His  Majesty  the  Czar. 

Such  also  was  the  spirit  which  prompted  the  instructions  that  we  have  re- 
ceived. It  is  not  for  me  to  judge  whether  in  the  course  of  our  work  here  to- 
gether the  Roumanian  delegation  has  sufficiently  acquitted  itself  in  the  prescribed 
direction  of  the  task,  honorable  yet  laden  with  responsibility,  which  devolved 
upon  it.     In  any  event,  it  has  not  been  wanting  in  good-will. 

But  what  is  much  more  important,  what  I  desire  to  make  clear  above  all,  is 
the  unboundedly  favorable  attitude  which  the  Royal  Government  has  never  ceased 
to  take  with  regard  to  the  program  and  the  work  of  the  Conference  —  its  sincere 
desire  to  be  of  service  to  this  great  cause. 

It  would  not  have  been  necessary  for  me  to  dwell  upon  this  point,  if  I  were 
speaking  only  to  the  members  of  this  high  assembly,  who  are  in  a  position  to  know 
and  to  judge  of  the  Roumanian  Government's  intentions. 

Our  debates  are  well-nigh  public,  and  outside  of  the  Conference  there  has 
been  a  certain  tendency  to  suspect,  even  to  distort,  what  does  not  suit  those  who 
have  constituted  themselves  censors  of  our  work,  censors  who  feel  the  more  at 
ease  since  we  have  no  protection  against  them.     This  tendency,  which  I  refrain 


SIXTH  MEETING,  JULY  19,  1899  629 

from  characterizing,  manifested  itself  with  respect  to  us  even  before  we  had 
occasion  to  lay  before  the  Conference  the  views  of  the  Roumanian  Government 
on  international  commissions  of  inquiry. 

There  is  all  the  more  reason  why  the  objections  which  we  must  formulate 
to-day  with  regard  to  these  provisions  will  meet  with  the  same  fate;  and  I  have 
no  other  means  than  my  voice  in  this  chamber  to  protect  my  Government  from 
all  sorts  of  malevolent  interpretations  which  will  not  fail  to  spring  into  being. 

I  pass  to  the  specific  question  which  now  concerns  us,  that  is  to  say,  the 
institution  of  international  commissions  of  inquiry  provided  for  by  the  draft 
Convention  for  the  pacific  settlement  of  international  disputes. 

The  Roumanian  Government,  which  is  entirely  in  favor  of  the  principle  of 
voluntary  arbitration,  as  formulated  under  point  8  of  the  program  of  his  Ex- 
cellency Count  MouRAViEFF,  the  importance  of  which  in  international  re- 
[34]  lations  it  fully  appreciates,  does  not,  however,  feel  bound  as  regards  ques- 
tions which  clearly  fall  beyond  the  scope  of  this  principle. 

How,  indeed,  was  this  point  8  worded  ? 

It  reads  as  follows: 

Acceptance,  in  principle,  of  the  use  of  good  offices,  mediation,  and  volun- 
tary arbitration,  in  cases  where  they  are  available,  with  the  purpose  of  pre- 
venting armed  conflicts  between  nations ;  understanding  in  relation  to  their 
mode  of  application  and  establishment  of  a  uniform  practice  in  employing 
them. 

This  is  the  principle,  thus  stated,  which  contains  nothing  with  regard  to 
obligatory  arbitration  or  international  commissions  of  inquiry  of  an  obligatory 
character,  to  which  my  Government  hastened  to  adhere  completely  and  without 
any  reservation. 

Allow  me  to  point  out  that,  so  far  as  the  interpretation  to  be  given  to  the 
eight  points,  which  were  unanimously  adopted  and  which  form  the  program 
of  our  work,  is  concerned,  the  Conference  has  not  proceeded  in  an  absolutely 
uniform  manner. 

There  are  certain  matters,  with  regard  to  which  the  opinion  prevailed  that 
we  must  keep  strictly  within  the  limits  laid  down  for  our  deliberations. 

Thus,  the  American  proposal  relative  to  the  inviolability  of  private  property 
at  sea,  although  closely  connected  with  the  questions  that  were  submitted  to  the 
Conference,  could  not  be  discussed,  and  we  had  to  confine  ourselves  to  expressing 
the  va:u  that  this  important  question  should  be  laid  before  a  future  conference. 
And  even  this  general  vocu,  which  contained  no  indication  of  the  solution  to  be 
given  to  the  problem,  presented  by  the  American  delegation,  could  not  be  adopted 
unanimously ! 

This  was  also  the  case  with  the  proposal  concerning  bombardment  by  naval 
forces  of  ports,  towns,  villages,  or  other  places  situated  on  the  sea,  which  are  not 
fortified  or  defended.  Without  wishing  to  trespass  in  the  slightest  degree  upon 
the  necessities  of  naval  warfare  and  while  recognizing  the  special  conditions  of 
naval  operations  along  the  coast,  there  nevertheless  existed  in  this  assembly  a 
strong  current,  an  almost  unanimous  desire  to  assimilate  to  a  certain  extent,  in  the 
matter  of  prohibition  of  bombardment  by  naval  forces,  the  undefended  towns, 
villages,  or  other  places  situated  on  the  seashore,  to  those  which  Article  25  of 
the  draft  Convention  on  the  laws  and  customs  of  war  guarantees  against  de- 
struction by  land  artillery.     It  was  objected  that  this  question,  which  pertained 


630  THIRD  COMMISSION 

so  closely  to  the  fate  of  maritime  populations,  was  beyond  the  scope  of  the  work 
that  had  been  assigned  to  us.  For  that  reason  the  very  general  vceu,  recommend- 
ing the  question  to  a  future  conference  —  a  vocu  devoid  of  any  hint  as  to  the 
solution  —  likewise  failed  to  secure  a  unanimous  vote. 

On  the  other  hand,  we  were  much  more  liberal  in  the  matter  of  international 
arbitration  under  point  8. 

And  perhaps  we  should  ask  ourselves  whether  in  dealing  with  different 
matters,  we  have  not  applied,  unintentionally,  two  different  standards  of  weights 
and  measures. 

It  is  not,  however,  my  intention  to  put  what  is  called  the  previous  question. 
'  The  draft  which  is  submitted  to  us  is  too  important  to  admit  of  a  mere  technical 
objection  in  the  matter  of  procedure.     It  is  the  substance  itself  that  especially 
concerns  my  Government. 

And  if,  as  I  am  sure,  it  is  disposed  to  examine  in  the  favorable  spirit  which 
animates  it  as  regards  this  draft,  all  proposals  that  are  a  development  or  even 
an  extension  of  the  principle  formulated  under  point  8,  it  would  not  be  just  to 
bear  it  ill-will  if  it  is  unable  to  adhere  to  stipulations  which  it  does  not  beheve 
to  be  compatible  with  the  rights  and  interests  of  Roumania  and  which,  in  its  opinion, 
are  not  calculated  to  facilitate  in  certain  cases  the  good  relations  which  our 
country  has  so  at  heart  to  maintain  with  all  other  Powers. 

It  is  evident  that,  if  the  Royal  Government  had  been  informed  from  the 
outset  that  the  institution  of  international  commissions  of  inquiry  with  obligatory 
force  would  be  considered  as  coming  within  the  scope  of  the  eighth  point,  it 
would  have  made  haste  to  formulate  at  once  its  serious  objections  on  this  special 
point,  while  declaring  itself  in  favor  of  the  principle  of  voluntary  arbitration. 

Such  was  not  the  case. 

We  had  before  us,  in  the  first  place,  the  original  Russian  project,  which  went 
through  various  successive  phases  before  the  present  draft  was  communicated 
to  us,  barely  ten  days  ago,  as  the  final  result  of  the  deliberations  of  the  committee 
of  examination. 

As  soon  as  it  was  apprised  of  the  original  project,  my  Government  immedi- 
ately called  attention  to  the  serious  objections  to  international  commissions  of 
inquiry  from  the  Roumanian  point  of  view. 

In  the  original  project  this  institution  was  not  exactly  the  same  in  character 
as  in  the  present  draft.  The  latter,  which  has  been  known  to  the  Royal  Govern- 
ment only  a  few  days,  could  not  but  still  further  confirm  the  apprehensions  felt 

at  Bucharest  from  the  very  first. 
[35]  And  if  the  commissions  of  inquiry  which  figured  in  the  original  project 
seemed  to  us  hardly  acceptable  to  our  country,  this  innovation  in  the  form 
in  which  the  present  draft  tends  to  introduce  it  into  international  law  is  still  less  so. 

I  pass  to  an  analysis  of  the  provisions  of  Article  9,  In  the  first  place,  there 
is  an  essential  difference  to  be  noted  between  the  mixed  commissions  of  inquiry, 
which  have  frequently  been  resorted  to  in  practice,  especially  between  neighbor- 
ing States,  and  the  institution  of  international  law  which  is  now  proposed  to  us. 
Roumania,  for  example,  has  on  many  occasions  had  recourse  in  its  neighborly 
relations  with  Russia,  Austria-Hungary,  and  Bulgaria,  to  such  mixed  commis- 
sions, whose  mission  it  was  to  ascertain  or  clear  up  on  the  spot  facts  which  had 
given  rise  to  an  incident  or  controversy.  These  commissions  have  often  been 
very  serviceable  by  furnishing  the  Governments  concerned  with  the  data  necessary 


SIXTH  MEETING,  JULY  19,  1899  631 

to  settle  in  concert  differences  which  certain  facts  of  a  local  character  had  pro- 
voked. From  this  point  of  view  —  but  from  this  very  general  point  of  view  onlv 
—  our  eminent  reporter,  Mr.  Descamps,  was  able  to  say  that  the  commissions  of 
inquiry  with  which  Section  3  deals  are  not  an  innovation.  I  cannot  share  this 
opinion  as  regards  the  obligatory  principle  which  the  committee  of  examination 
deemed  it  necessary  to  adopt,  and  as  regards  the  composition  of  these  commis- 
sions, as  provided  for  in  Article  10.  This  article  contains,  on  the  contrary,  a  very 
important  innovation  in  the  matter  of  international  law,  an  innovation  which 
tends  to  change  completely  the  character  of  the  mixed  commissions  of  which  I 
was  just  speaking.  In  effect,  the  latter  perform  their  functions  only  by  virtue 
of  an  absolutely  spontaneous  agreement  between  the  Governments  directly  in- 
terested in  the  dispute,  and  not  by  virtue  of  an  international  stipulation.  Now, 
Article  9  expressly  says :  "  The  signatory  Powers  .  .  .  agree  to  have  recourse 
...  to  the  institution  of  international  commissions  of  inquiry."  That  is  a  formal 
engagement,  which  a  State  may  always  invoke  against  another  when  opinions  as 
to  the  expediency  or  necessity  of  such  a  commission  are  divided.  Is  not  this 
obligation,  limited,  it  is  true,  by  certain  clauses  which  we  shall  examine  in  a 
moment,  a  real  innovation  in  this  field?  Certainly,  and  we  do  not  consider 
it  a  happy  innovation. 

On  the  contrary,  if  this  new  principle  were  to  be  adopted  for  cases  of  local 
investigation,  which  are  so  frequent  and  which  up  to  the  present  time  have  been 
left  entirely  to  the  unrestricted  judgment  of  the  Governments,  it  is  to  be  feared 
that  the  practical  application  of  this  obligatory  provision,  far  from  facilitating 
the  solution  of  the  disputes  in  question,  will,  on  the  contrary,  give  rise  to  serious 
difficulties.  For  to  be  obliged  to  accept  in  certain  cases  an  international  in- 
vestigation by  virtue  of  a  stipulation,  instead  of  having,  as  in  the  past,  full  and 
complete  freedom  of  action  in  this  respect,  may  at  a  particular  moment  confront 
a  State  with  serious  political  complications. 

But  before  taking  up  the  political  aspect  of  the  question  —  an  aspect  which 
seems  to  be  inherent  in  the  obligatory  principle  itself  —  I  must  point  to  another 
innovation,  no  less  important  than  the  first,  concerning  the  composition  of  inter- 
national mixed  commissions  charged  with  a  local  investigation. 

If  the  draft  which  we  are  discussing  should  become  public  law,  membership 
in  these  commissions  would  not,  as  at  present,  be  restricted  exclusively  to  the 
representatives  of  the  States  directly  interested  in  the  difference,  but  the  door 
would  be  thrown  open  to  the  intervention  of  third  Powers  not  concerned  in  the 
dispute.  .  .  .  {Various  interruptions  by  members  of  the  committee  of  examina- 
tion :     "  That  is  a  mistake  !  ") 

Mr.  Beldiman  continues:     Permit  me,  gentlemen,  to  explain. 

Article  10  of  the  draft  says  that  the  commissions  shall  be  constituted,  unless 
there  be  a  stipulation  to  the  contrary,  in  the  manner  prescribed  in  Article  31  of 
the  present  Convention. 

Now,  this  latter  article  deals  with  the  constitution  of  the  arbitral  tribunal 
in  which  the  representatives  of  third  Powers  clearly  may  sit  as  members  or 
umpires.  .  .  .   {Interruptions.) 

I  hear  it  said  that  these  third  Powers  will  be  chosen  by  the  parties  at  vari- 
ance themselves.  That  is  true.  It  is  no  less  true  that  by  constituting  commis- 
sions of  inquiry  in  this  way,  their  present  character  will  be  completely  modified. 
They  will  cease  to  be  a  means  of  administrative  investigation,  which  the  Govern- 
ments at  issue  may  or  may  not  adopt  as  they  see  fit,  and  will  assume  the  authority 


632  THIRD  COMMISSION 

of  an  institution  of  international  law.  That  is  an  essential  point,  a  question 
of  principle,  of  which  neither  the  great  importance  in  so  far  as  the  engagement  to 
be  contracted  is  concerned,  nor  the  practical  consequences  which  must  necessarily 
flow  therefrom  can  be  disregarded.  To  make  our  idea  clearer,  let  us  compare 
the  present  situation  of  Roumania,  which  is  at  liberty  to  decide  whether  to  have 
recourse  to  a  commission  of  inquiry,  with  the  situation  in  which  we  would  be, 
if  we  subscribed  to  this  stipulation. 

At  the  present  time,  if  as  the  result  of  some  incident  our  Government  were 
called  upon  to  decide  upon  the  expediency  of  such  a  measure  —  such  cases  occur 
rather  frequently  —  it  is  absolutely  free  to  do  as  it  may  judge  advisable,  without 
being  bound  by  an  international  engagement.  To-morrow,  by  virtue  of  Article  9 
of  the  present  Convention,  another  Power  will  be  able,  indeed  will  have  the 
[36]  right  to  propose  to  us  a  commission  of  inquiry  in  circumstances  which  may 
perhaps  not  suit  us.  It  will  therefore  not  suffice  merely  to  consider  the 
facts  in  the  case  and  the  political  situation  with  which  these  facts  are  connected ; 
the  whole  question  will  be  complicated  by  the  application  to  the  case  of  an  in- 
ternational convention  which  may  be  invoked  against  us,  if  we  do  not  feel  that  we 
can  accede  to  the  request  that  is  made  of  us.  The  very  discussion  of  the  ques- 
tion whether  or  not  there  should  be  recourse  to  a  commission  of  inquiry,  in  con- 
formity with  Article  9,  the  inevitable  divergent  views  as  to  the  interpretation  to 
be  given  to  this  stipulation,  all  these  legal  difficulties  will  entwine  themselves 
around  the  incidents  of  fact  and  will  certainly  not  aid  in  facilitating  their  settle- 
ment. 

It  is  evident  to  us  that  Roumania  —  and  the  two  States  that  share  our  view 
will  be  in  the  same  plight  —  will  find  itself  as  a  result  of  the  new  institution 
which  it  is  proposed  to  create  in  a  much  less  favorable  situation,  in  a  situation 
inferior  to  that  in  which  it  now  is,  when  it  is  required  to  pass  upon  a  proposal 
from  another  Government  to  have  recourse  to  a  commission  of  inquiry. 

Our  attention  is  called,  however,  to  the  clause  which  expressly  excepts 
questions  of  fact  in  which  the  honor  or  vital  interests  of  the  Powers  at  variance 
are  involved,  as  well  as  the  clause  "  so  far  as  circumstances  allow,"  which  offer 
sufficient  guaranties  against  the  objectionable  features  which  I  have  pointed  out. 

We  are,  I  must  confess,  far  from  being  so  reassured  on  this  score.  In  the 
first  place,  it  is  not  well  to  invoke  on  all  occasions  the  honor  and  vital  interests  of 
a  country. 

Numerous  cases  may  arise  that  are  very  important  to  our  kingdom,  in  which, 
however,  it  could  not  be  said  in  all  good  conscience  that  honor  or  vital  interests 
are  directly  involved,  but  it  might  be  contrary  to  the  interests  of  the  policy  of  our 
State  to  accept  a  commission  of  inquiry  in  such  cases  for  reasons  which  it  might 
perhaps  be  considered  inexpedient  to  discuss. 

Why  expose  ourselves  to  the  necessity  of  justifying  a  refusal  as  regards 
the  application  of  an  international  stipulation?  What  is  the  need  of  complicat- 
ing the  discussion  by  considerations  as  delicate  as  those  affecting  the  honor  of  a 
State  or  its  vital  interests,  when  every  Government  is  to-day  absolutely  free  to 
decide  whether  or  not  it  should  have  recourse  to  a  commission  of  inquiry? 
And  then,  as  to  the  question  whether  in  such  a  case  honor  or  vital  interests 
are  more  or  less  at  stake  —  a  question  brought  into  being  by  Article  9  —  is  there 
not  too  much  latitude  left  to  the  judgment  of  each  individual  State?  And  will  it 
not  frequently  happen  that  various  Powers  in  dispute  are  unevenly  matched? 


SIXTH  MEETING,  JULY  19,  1899  633 

Such  are  the  serious  objections  that  we  find  to  this  clause,  which,  bound 
up  as  it  is  with  the  obhgatory  principle  of  Article  9,  seems  to  us  to  contain  germs  of 
discord,  elements  of  complication  rather  than  sufficient  guaranties  against  pre- 
tensions that  might  be  urged  against  our  legitimate  interests. 

This  clause  might,  it  is  true,  be  given  an  entirely  different  interpretation.  It 
might  be  considered  as  a  convenient  pretext  for  evading,  if  occasion  demanded, 
the  stipulation  relative  to  these  international  commissions  of  inquiry.  I  have 
even  heard  it  said  that  Article  9  does  not  as  a  matter  of  fact  bind  the  nations  to  any 
great  extent,  that  there  is  always  a  way  to  elude  the  obligatory  principle  which 
it  contains  by  evoking  the  honor  and  vital  interests  clause,  or  by  laying  stress 
on  special  circumstances  which  would  not  permit  the  institution  of  a  commission 
of  inquiry.  Such  could  not  be  the  point  of  view  of  a  Government  solicitous  of  its 
dignity  and  anxious  always  to  fulfill  its  engagements. 

The  Government  of  my  august  sovereign  prefers  frankly  to  oppose  this 
part  of  the  draft  to  subscribing  to  it  with  the  mental  reservation  that  it  will 
be  able  subsequently,  by  means  of  specious  interpretations  or  subterfuges,  to 
escape  the  application  of  the  principle  which  governs  these  provisions  and  which 
it  would  only  have  accepted  in  form. 

We  feel,  gentlemen,  that  in  matters  of  policy,  especially  the  policy  of  small 
States,  absolute  good  faith  in  international  relations  is  a  force  and  the  best  safe- 
guard of  their  interests. 

This  is  the  position  we  are  taking  in  stating  frankly  and  sincerely  that 
Roumania  —  in  the  light  of  the  experience  she  has  had  in  the  past  thirty  years 
during  which  she  has  had  many  great  difficulties  to  overcome  before  reaching 
her  present  situation  —  cannot  consider  the  institution  of  international  commissions 
of  inquiry  under  the  conditions  laid  down  in  this  draft  as  a  practical  and  useful 
means  of  settling  in  an  amicable  manner  controversies  of  a  local  nature. 

My  task  would  be  greatly  facilitated  if  I  could  cite  examples  in  support  of 
the  arguments  which  I  have  had  the  honor  to  present  to  you,  examples  which 
would  bring  out  in  greater  rehef  the  reasons  for  our  objections. 

But  I  do  not  wish  to  run  the  risk  of  touching  upon  political  questions  which 
his  Excellency  Count  Mouravieff  so  wisely  excluded  from  our  debates. 
[37]  However,  as  a  general  rule  and  without  examining  specific  cases,  which 
would  nevertheless  be  instructive,  we  believe  that  it  is  impossible  to  legislate 
in  the  abstract  on  a  matter  which  deals  with  the  settlement  of  international  con- 
troversies without  taking  into  account  the  practical  consequences  which  might 
result,  from  the  proposed  provisions,  in  the  political  relations  of  the  States  con- 
cerned. 

If  we  could  consider  Article  9  solely  from  the  standpoint  of  pure  theory 
there  would  be  nothing  to  say  against  it.  Its  prescriptions  correspond  with 
the  laudable  peaceful  intentions  of  its  authors. 

Only  allow  me  to  say  that  we  are  above  all  an  assembly  of  political  men 
to  whom  are  entrusted  the  interests  of  the  States  which  we  have  the  honor  to 
represent,  and  as  such  it  is  our  duty  to  take  into  account  the  exigencies  of  politics, 
just  as  in  an  entirely  different  matter  —  the  Declaration  of  Brussels — ;we  were 
obliged  to  take  into  account  the  necessities  of  war.  We  were  all  inspired  by  an 
ardent  desire  to  mitigate  as  far  as  possible  the  evils  of  war;  and  the  efforts  of 
this  high  assembly  to  give  concrete  form  to  the  humanitarian  sentiments  which 
animated  it  will  remain  one  of  the  finest  pages  of  its  deliberations. 


634  THIRD  COMMISSION 

Unfortunately  reality  is  often  stronger  than  the  best  intentions.  On  more 
than  one  occasion  the  necessities  of  war  set  an  insurmountable  barrier  in  the  way 
of  the  realization  of  the  sincere  hopes  which  we  all  shared. 

The  same  is  true  of  the  sphere  of  international  politics.  To-day,  with  the 
loftiest  of  purposes  we  desire  in  vain  to  eliminate  the  exigencies  of  politics ;  to- 
morrow, inexorable  reality  confronts  each  one  of  us  when  he  returns  to  his  cus- 
tomary sphere  of  action. 

It  is  along  these  lines  that  we  deem  it  advisable  to  recall  now  that  these  stipu- 
lations regarding  commissions  of  inquiry  cannot  be  considered  solely  from 
the  theoretical  point  of  view  of  international  law,  but  that  they  are  required 
to  be  applied  in  practice  to  the  political  relations  between  States.  Roumania, 
who  assumed  some  twenty  years  ago  her  place  among  the  independent  States  of 
Europe,  has  not  for  an  instant  ceased  to  devote  all  her  efforts  to  a  sincerely 
peaceful  policy. 

This  policy  has  been  put  to  the  proof  during  the  past  twenty  years,  and  it 
is  not  necessary  in  this  assembly,  which  counts  among  its  members  so  many 
eminent  statesmen  who  have  taken  an  active  part  in  international  affairs,  to  make 
known  the  policy  which  has  constantly  been  pursued  by  our  kingdom  that  is 
happy  and  proud  to  have  been  able  thereby  to  win  the  approval  and  confidence 
of  all  the  great  Powers. 

If  the  horizon  beyond  our  frontier  has  at  times  been  darkened  by  threatening 
clouds  presaging  a  violent  storm  full  of  perils  for  all,  our  territory  has  never  been 
the  source  of  the  lightning  flashes. 

History  will  appraise  what  Roumania  has  been  able  to  contribute  in  her 
modest  sphere  to  the  maintenance  of  peace  in  a  corner  of  Europe  which  has 
frequently  given  cause  for  anxiety.  Our  country  at  any  rate  will  not  forget  the 
gratitude  which  it  owes  to  the  great  Powers  for  the  effective  support  which  they 
have  always  given  it  in  its  development  of  consolidation. 

It  is  with  this  in  mind  that  Roumania  now  considers  herself  justified  in  sub- 
mitting to  you  her  very  serious  objections,  founded  on  long  experience,  to  an 
institution  which  does  not  seem  to  her  to  conform  to  the  general  spirit  of  peace 
and  concord  that  inspires  the  draft  Convention  as  a  whole.  In  our  opinion,  the 
general  arrangement  of  the  latter  would  not  suffer  in  any  respect,  but  on  the 
contrary  would  gain  in  value,  if  the  articles  concerning  international  commissions 
of  inquiry  were  eliminated. 

We  venture  to  hope  that  the  Imperial  Government  of  Russia,  in  the  gener- 
ous spirit  which  pervades  all  the  proposals  that  it  has  submitted  to  the  Conference, 
will  ask  itself  whether  it  is  indeed  necessary  to  attach  so  much  importance  to 
the  preservation  of  this  paragraph.  Will  it  detract  from  the  general  cause  of 
arbitration,  which  will  be  sanctioned  by  this  Convention,  if  obligatory  commis- 
sions of  inquiry  do  not  figure  therein? 

We  do  not  think  so. 

It  cannot  be  the  intention  of  the  Powers  that  originally  collaborated  on  this 
draft  to  cause  stipulations  to  be  adopted  by  the  Conference  as  the  result  of 
which  Roumania,  as  well  as  Greece  and  Serbia,  would  consider  themselves  placed 
in  a  situation  inferior  to  that  in  which  they  are  at  present  and  which  they  have 
attained  at  the  cost  of  so  many  sacrifices. 

No,  gentlemen,  our  common  cause  is  too  noble  a  one  to  allow  a  discordant 
note  to  enter  therein. 


SIXTH  MEETING,  JULY  19,  1899  635 

That  is  why  the  Royal  Government  has  charged  me  to  make  a  strong  appeal 
to  this  high  assembly,  and  especially  to  the  representatives  of  the  Imperial  Govern- 
ment of  Russia,  so  that  pur  objections  in  the  matter  of  principle,  founded  at  the 
same  time  on  a  policy  regarding  whose  eminently  peaceful  trend  there  can  be  no 
doubt,  may  be  taken  into  favorable  consideration.  In  conclusion,  I  beg  you  to 
pardon  me  if  I  have  trespassed  upon  your  time  at  greater  length  than  usual. 

But  the  question  that  is  now  before  us  is  of  too  great  importance  to  our 
[38]  country  to  admit  of  brief  treatment.  I  do  not  pretend  to  be  an  orator; 
far  from  it.  What  I  especially  wish  to  be  is  the  faithful  interpreter  of  the 
views  and  instructions  of  my  Government,  the  devoted  defender  of  the  rights, 
the  interests,  and  the  future  of  our  kingdom,  and  the  no  less  devoted  partisan 
of  the  good  relations  which  so  happily  exist  beween  Roumania  and  all  other 
Powers,  especially  her  neighbors. 

Mr.  Veljkovitch  delivers  the  following  address: 

In  the  name  of  the  delegation  of  Serbia,  I  have  the  honor  to  state  that  we 
join  in  the  arguments  that  have  just  been  presented  by  the  delegate  of  Roumania 
in  favor  of  our  common  motion  for  the  elimination  of  paragraph  3  of  the  draft 
Convention  which  we  have  now  under  discussion.  At  the  same  time  allow  me  to 
supplement  his  observations  with  a  few  considerations  that,  in  my  opinion,  de- 
serve the  attention  of  this  honorable  assembly. 

First  of  all,  we  desire  to  make  it  perfectly  clear  that  in  asking  for  the  sup- 
pression of  Section  3  concerning  international  commissions  of  inquiry,  we  do 
not  mean  to  say  that  we  are  absolutely  opposed  to  this  institution  in  every  respect. 
We  are,  on  the  contrary,  ready  to  recognize  that  under  special  and  exceptional 
circumstances  international  commissions  of  inquiry,  freely  consented  to  by  the 
interested  parties,  might  render  important  services.  They  can,  to  be  specific, 
give  an  inquiry  on  the  facts  the  stamp  of  authority  which  the  public  opinion  of 
third  States  will  not  perhaps  recognize  as  characterizing  investigations  carried  on 
by  national  authorities  alone,  particularly  if  such  an  investigation  is  carried  on 
in  the  midst  of  a  public  opinion  over-excited  by  some  political  event  connected 
with  the  matter  under  investigation. 

But  those  are  exceptional  circumstances.  They  can  therefore  in  no  way 
warrant  or  justify  the  generalization  of  such  proceedings. 

For  there  is  one  thing  which,  to  our  mind,  it  is  important  to  take  into  con- 
sideration, namely,  that  there  is  beneath  every  request  for  an  international  in- 
vestigation a  sort  of  doubt,  more  or  less  direct,  concerning  the  impartiality  of  an 
investigation  conducted  by  the  national  authorities  of  the  other  State  alone. 
And  again,  a  State's  acceptance  of  the  proposal  to  appoint  an  international  com- 
mission of  inquiry  implies  its  consent  to  subject  the  action  of  its  own  authorities, 
at  least  as  regards  such  and  such  a  specific  fact,  to  a  sort  of  international  control. 

Now,  this  doubt  as  to  the  impartiality  of  the  authorities  of  another  State, 
this  control  consented  to  over  its  own  authorities,  this  is  ground  on  which  it  would 
seem  that  we  should  not  tread  except  with  all  due  prudence. 

Among  the  susceptibilities  that  all  States  have,  there  are  some  which  are 
indisputably  legitimate  and  which  it  is  most  important  not  to  ruffle  under  penalty 
of  discrediting  the  entire  institution  by  having  recourse  to  it  at  a  time  when 
such  recourse  is  inopportune. 

However,  Article  9  of  the  draft  Convention,  at  least  in  the  form  which  it 


636  THIRD  COMMISSION 

has  now  assumed,  is  far  from  offering  us  a  guaranty  against  the  inopportune 
utiHzation  of  international  commissions. 

The  disputes  which  Article  9  excludes  from  the  jurisdiction  of  international 
commissions  of  inquiry  are  disputes  involving  national  honor  or  the  vital  interests 
of  States. 

This  formula  is  undoubtedly  an  excellent  one  in  theory.  And  even  from 
the  point  of  view  of  practice  there  is  no  fault  to  be  found  with  it  as  far  as  the  re- 
lations of  large  States  with  one  another  are  concerned.  But  in  the  relations  be- 
tween great  Powers  on  the  one  hand  and  small  Powers  on  the  other,  we  believe 
we  are  justified  in  inquiring  whether  in  practice  the  great  Powers  will  always 
show  a  disposition  to  recognize  that  small  Powers  have  the  same  susceptibilities 
in  the  matter  of  honor  and  vital  interests  as  they  themselves  certainly  will  not 
fail  to  have.  Will  not  the  small  Powers  be  drawn  at  times  into  humiliating 
discussions  as  to  whether  in  such  and  such  a  case  their  national  honor  is  really 
involved,  while,  on  the  other  hand,  it  will  frequently  suffice  for  the  great  Powers 
to  invoke  the  argument  of  national  honor  to  make  it  at  once  morally  impossible 
for  small  Powers  properly  to  bring  the  subject  to  discussion. 

There  is  therefore  in  the  honor  clause  of  Article  9  a  source  of  inequality  of 
treatment  as  between  the  great  and  the  small  Powers,  an  inequality  which  we, 
being  the  weaker,  may  at  times  be  obhged  to  accept  in  fact,  but  which  it  is  ab- 
solutely impossible  to  sanction  in  law  or  to  seal  with  our  signatures  in  an  inter- 
national convention. 

And  that  is  not  all.  For  even  when  it  is  averred  and  mutually  recognized 
that  neither  national  honor  nor  vital  interests  are  at  stake,  there  still  remains  the 
clause  by  virtue  of  which  the  Powers  would  have  the  option  of  having  recourse 
to  international  commissions  of  inquiry  only  "  if  circumstances  allow."  It  is  not 
necessary  to  be  very  deeply  initiated  in  international  political  life  to  know  that 
circumstances  very  often  permit  the  great  and  powerful  to  do  many  things  merely 

because  they  are  great  and  powerful. 
[39]  The  guaranty  provided  by  the  provision  "  so  far  as  circumstances  allow  " 

'is  therefore  no  guaranty  at  all.  The  vagueness  of  this  provision  will  most 
frequently  give  rise  in  practice  to  the  possibility  of  large  States  imposing  the  con- 
stitution of  an  international  commission  of  inquiry  upon  small  States  whenever 
they  deem  it  expedient.     The  reverse,  however,  can  never  take  place. 

Now,  an  institution  —  were  it  the  best  in  the  world  —  which  would  operate 
only  at  the  pleasure  of  one  of  the  contracting  parties  can  never  be  regarded 
as  in  harmony  with  the  exigencies  of  the  other  contractant's  honor  and  dignity. 

Under  these  conditions,  the  nature  of  the  institution  of  international  com- 
missions would  be  changed.  The  public  opinion  of  the  small  States  would  no 
longer  regard  them  as  exclusively  a  means  for  the  impartial  ascertainment  of  the 
real  facts,  with  a  view  to  faciUtating  the  work  of  justice;  but  as  an  outward  sign 
of  inferiority  and  dependence  and,  as  such,  public  opinion  in  the  small  States 
would  never  accept  such  commissions. 

If  we  were  to  adopt  them,  it  seems  to  me  that  we  could  hardly  boast  that 
we  had  contributed  to  the  progress  of  international  law.  An  institution  which 
would  only  fortify  the  strong  in  a  situation  that  is  already  strong  as  against  the 
small  and  weak  would  be  directly  opposed  not  only  to  the  tendency  of  international 
law,  but  also  to  every  idea  of  justice  and  equity  in  general. 

If  international  commissions  of  inquiry  could  be  organized  in  such  a  way 


SIXTH  MEETING,  JULY  19,  1899  637 

as  to  make  an  engagement  equally  and  seriously  applicable  to  all  the  contractants, 
I  think,  gentlemen,  it  would  then  be  possible  for  us  to  come  to  an  agreement. 
But  when  the  committee  of  examination,  composed  of  so  many  eminent  men, 
the  most  competent  in  this  field,  has  not  succeeded,  after  long  and  profound  study, 
in  submitting  to  us  a  draft  free  from  faults  as  serious  as  those  which  I  have 
just  pointed  out  seem  to  me  to  be,  I  conclude  that  the  matter  is  not  yet  ripe 
enough  to  enter  into  conventional  international  law.  We  have  already  in  the 
course  of  our  labors  encountered  similar  difficulties,  which  we  let  alone,  leaving 
the  whole  question  in  the  domain  of  unwritten  international  law,  with  an  ex- 
pression of  hope  that  with  the  development  of  the  sentiment  of  international 
solidarity  and  the  aid  of  progressive  customs,  crying  abuses  would  not  result  there- 
from in  practice.  Such  was  the  action  which  we  then  deemed  we  ought  to  take; 
it  is  also  the  solution  to  which  it  seems  to  me  inevitable  that  we  should  now  have 
recourse. 

These,  gentlemen,  are  the  reasons  why  —  without  attacking  the  institution 
itself  —  we  thought  it  necessary  to  ask  for  the  omission  of  Section  3  of  the  draft 
relating  to  the  international  commissions  of  inquiry. 

Mr.  Delyanni,  delegate  of  Greece,  speaks  as  follows: 

After  an  exposition  so  clear  and  so  illuminating  as  that  of  my  colleague  of 
Roumania  of  the  motion  which  he  had  the  honor  to  present  to  the  commission  on 
the  third  chapter  of  the  draft  Convention  for  the  pacific  settlement  of  inter- 
national disputes,  and  the  very  detailed  remarks  with  which  the  delegate  of  Serbia 
has  supplemented  it,  there  is  nothing  left  for  me  to  add  in  support  of  the  reasons 
which  have  led  them  to  submit  this  proposal  to  you,  and  I  shall  confine  myself  to 
commending  it  likewise,  trusting  that  the  commission  will  examine  it  in  the  hope 
of  reaching  an  agreement,  as  is  desired  by  all,  especially  at  the  end  of  our  labors. 

Dr.  Standoff  desires  to  say  a  few  words  in  reply  to  the  arguments  of  the 
preceding  speakers.  Mr.  Beldiman  has  said  that  we  should  not  contract  en- 
gagements with  the  intention  in  mind  of  not  observing  them.  No  more  than 
he  does  Mr.  Stancioff  desire  to  hide  behind  formulas  which  he  has  accepted 
because  they  would  not  bind  him  in  any  way.     But  such  is  not  the  situation  here. 

The  institution  of  international  commissions  of  inquiry,  with  the  organization 
which  the  draft  insures  to  such  commissions,  leaves  the  States  every  guaranty 
of  independence  that  they  can  wish  for.  Mr.  Stancioff  quotes  the  clause  which 
provides  for  the  operation  of  the  commission  "  so  far  as  circumstances  allow."  He 
recalls  likewise  the  stipulation  to  the  effect  that  "  the  interested  parties  agree  to 
have  recourse,  etc." 

These  provisions  would  seem  to  leave  the  States  free  to  judge  and  act  as 
they  see  fit,  and  guarantee  that  the  dispute  will  be  settled  between  the  interested 
parties  and  without  the  intervention  of  parties  not  concerned  in  the  controversy. 

Mr.  Stancioff  dwells  upon  the  composition  of  the  commissions,  as  pro- 
vided for  in  Article  31.  The  two  countries  in  dispute  will  have  freely  chosen 
representatives  on  the  commission,  with  a  third  member  acting  as  an  impartial 
president.     That  is  still  another  important  guaranty. 

Mr.  Beldiman  has  recalled  that  international  mixed  commissions  already 
exist,  and  he  has  shown  the  differences  which  there  seem  to  him  to  be  between 
these  commissions  and  the  organ  created  by  the  present  draft.  Mr.  Stancioff 
thinks  that  there  is  the  same  difference  between  these  two  institutions  as  between 
custom  and  the  written  law,  and  he  says  that  we  can  only  congratulate  ourselves 


638  THIRD  COMMISSION 

when  the  progress  of  ideas  causes  the  former  to  be  superseded  by  the  latter. 
[40]  Passing  to  Article  13,  Mr.  Stancioff  shows  how  this  provision  gives  the 
States  freedom  of  action  in  so  far  as  the  operation  of  commissions  of  inquiry 
is  concerned.  He  recalls  that  the  report  of  the  commission  of  inquiry  has  not 
the  binding  character  of  an  arbitral  award.  This  report  states  the  facts  and 
thus  makes  it  possible  to  gain  time  and  calm  the  public  mind;  it  is  a  powerful 
aid  in  quieting  down  and  settling  the  dispute. 

In  conclusion,  Mr.  Stancioff  says  that  he  does  not  share  the  apprehensions 
which  have  been  expressed  on  the  score  of  the  danger  to  which  the  international 
commissions  of  inquiry  will  expose  the  little  States.  He  would  merely  ask  that 
the  text  of  Article  9  be  slightly  modified  so  as  to  emphasize  the  fact  that  com- 
missions of  inquiry  are  really  of  a  voluntary  nature,  as  Article  9  at  bottom  pro- 
vides, although  its  terms  are  not  absolutely  explicit  on  that  subject. 

He  would  request  further  that  Article  13  be  amended  in  such  a  way  as  to 
make  it  perfectly  clear  that  the  States  at  variance  have  the  right,  if  it  seems  to 
them  advisable,  to  consider  the  commission's  report  as  not  having  been  made. 

Mr.  Stancioff's  amendment  would  read  as  follows: 

Article  13 

It  leaves  to  the  Powers  in  controversy  entire  freedom  either  to  conclude 
a  friendly  settlement  based  upon  this  report,  or  to  consider  the  report  as 
never  having  been  made. 

Mr.  Rolin,  delegate  of  Siam,  makes  the  following  declaration: 

The  delegates  of  Siam  have  received  express  instructions  not  to  neglect  any 
opportunity  to  make  known  the  desire  which  animates  His  Majesty  the  King  of 
Siam  to  respond  to  the  noble  initiative  of  His  Majesty  the  Emperor  of  Russia 
by  aiding  in  bringing  about  an  agreement  among  the  Powers  represented  at  The 
Hague.  The  views  of  the  Siamese  Government  are  particularly  favorable  to 
the  conclusion  of  a  Convention  for  the  pacific  settlement  of  international  disputes, 
and  Articles  9-13  of  the  draft,  relative  to  international  commissions  of  inquiry, 
will  receive  a  favorable  vote  from  us. 

We  shall  be  particularly  glad  to  cast  this  vote  and  we  eagerly  hope  that 
these  articles  will  be  adopted,  for  it  is  our  conviction  that  it  is  essentially  in  the 
interest  of  the  Siamese  Government  to  make  known  and  to  ascertain  the  truth  in 
all  cases  which  concern  it.  There  is,  moreover,  no  doubt  that  an  exact  and  com- 
plete knowledge  of  the  facts  would  be  calculated  to  facilitate  the  peaceful  settle- 
ment of  disputes  by  preventing  Governments  from  falling  into  error  and  public 
opinion  from  being  led  astray. 

Furthermore,  we  consider  that  a  difference  between  States  will  very  rarely 
have  to  do  with  a  question  of  fact  and  that  the  ascertaining  of  the  facts  will  as 
a  general  thing  be  nothing  more  than  a  natural  and  necessary  prelude  to  a  legal 
argument.  We  therefore  believe  that  arbitration  must  necessarily  follow  upon 
the  investigation,  in  default  of  an  immediate  agreement.  It  is  with  this  convic- 
tion that  we  declare  that  the  Siamese  Government  will  undoubtedly  be  led  to  con- 
sider the  agreement  looking  to  possible  arbitration,  or  in  other  words  the  previous 
conclusion  of  a  compromis,  as  the  principal  condition  on  which  it  will  be  able 
to  consent  to  an  investigation  of  disputed  facts  on  its  territory  by  an  international 
commission  of  inquiry. 

We  request  that  official  note  be  made  of  this  declaration. 


SIXTH  MEETING,  JULY  19,  1899  639 

Mr.  RoLiN  is  informed  that  his  declaration  will  be  officially  recorded. 

Chevalier  Descamps  says  that  it  is  his  duty  to  defend  the  conclusions  which 
were  unanimously  adopted  by  the  committee  of  examination,  and  that  he  is  ready 
to  set  them  forth  in  the  greatest  detail  if  that  should  be  necessary.  All  the  dele- 
gates have  come  here  animated  by  a  twofold  sentiment  —  a  sincere  devotion  to 
the  cause  of  peace  and  the  rapprochement  of  nations,  and  a  steadfast  attachment 
to  their  own  countries.  It  is  evident  that  every  one  has  the  right  and  the  duty  to 
examine  the  question  from  the  point  of  view  of  the  State  which  he  represents.  It 
is  clear  also  that  the  institution  may  not  be  regarded  by  everybody  in  the  same 
light.  It  is  perfectly  legitimate  that  the  little  States  should  consider  it  from 
their  special  point  of  view.  Nevertheless,  Mr.  Descamps  believes  that  it  will  be 
possible  to  satisfy  all  in  large  measure  without  eliminating  a  series  of  provisions 
to  which  the  committee  of  examination  has  given  its  approval. 

What  the  committee  did  along  these  lines  was  done  unanimously.  No  one 
dreamt  of  denying  the  beneficial  character  of  commissions  of  inquiry.  However, 
as  regards  the  character  to  be  given  them,  there  have  come  to  light  certain 
divergent  opinions. 

Before  taking  up  this  point,  the  reporter  deems  it  necessary  to  settle  a  ques- 
tion brought  up  by  Mr.  Beldiman,  a  question  for  which,  in  his  opinion,  there 
is  no  good  ground.  The  delegate  of  Roumania  contests  the  competence  of  the 
commission,  basing  his  argument  on  an  interpretation  of  point  8  of  the  Russian 
circular  of  December  30,  1899.  If  this  interpretation  were  adopted,  we  should 
reach  inadmissible  conclusions.  There  would  seem  to  be  two  decisive  reasons 
against  this  interpretation.  We  must  look  at  the  circular  of  his  Excellency  Count 
MouRAViEFF  as  a  whole.  What  he  proposes  are  themes  expressed  in  general  out- 
line, not  an  invariable  solution.  Moreover,  we  must  likewise  take  into  account 
his  Excellency  Mr.  de  Beaufort's  circular,  which  submits  to  the  examination  of 
the  Conference  "  all  other  questions  connected  "  with  the  program  laid  out 
[41]  by  his  Excellency  Count  Mouravieff's  circular.  Under  these  conditions, 
it  is  impossible  to  question  the  competence  of  the  high  assembly.  If  the 
opposite  solution  were  adopted,  instead  of  marching  forward,  we  should  go  back- 
ward, since  there  exist  treaties  which  provide  for  cases  of  obligatory  arbitration. 

There  would  seem  to  be  no  doubt  on  this  point.  Furthermore,  we  cannot 
disregard  the  intentions  of  the  Imperial  Russian  Government,  which  itself  enumer- 
ated cases  of  obligatory  arbitration  in  the  first  project  that  it  submitted  to  the 
Conference. 

Mr.  Beldiman  has  said  that  the  draft  would  gain  through  the  omission 
of  Section  3.  The  reporter  is  of  the  opposite  opinion.  The  committee  has  en- 
deavored to  adopt  a  body  of  provisions  which  hold  together,  which  bear  upon 
the  general  maintenance  of  peace,  and  which  in  case  of  a  serious  dispute  provide 
for  mediation  and  good  offices.  In  addition  —  for  cases  in  which  questions  of  law 
or  questions  of  fact  give  rise  to  differences  between  States  —  arbitration  has  been 
provided  on  the  one  hand  and  international  commissions  of  inquiry  on  the  other. 
The  mission  of  international  commissions  of  inquiry  is  simply  to  elucidate  points 
of  fact.  If  this  mission  led  to  other  consequences,  it  would  be  running  counter  to 
the  purpose  in  mind. 

Mr.  Beldiman  has  said  that  the  original  reading  —  that  of  the  Russian  pro- 
ject —  was  more  acceptable.  We  shall  point  out  to  him  that  the  new  reading  has 
been  formulated  for  the  purpose  of  eliminating  the  obligatory  character  of  the 


640  THIRD  COMMISSION 

original  provisions.     This  interpretation  was  accepted  by  all  the  members  of  the 
committee  of  examination. 

The  reporter  remarks  that  the  text  of  the  draft  submitted  for  consideration 
contemplates  the  Powers  interested  in  the  dispute  to  the  exclusion  of  intervention 
by  other  Powers.  The  intentions  of  the  committee  of  examination  and  the  evi- 
dent meaning  of  the  article  meet  Mr.  Beldi man's  desires. 

The  honorable  delegate  of  Roumania  has  said  that  the  commissions  constitute 
an  innovation.  We  must  understand  each  other.  Mixed  commissions  have  long 
been  in  existence  and  operation.  We  are  striving  to  improve  them.  Nevertheless 
the  former  mixed  commissions  and  the  present  institution  are  two  organizations 
of  the  same  kind. 

Without  wishing  to  dwell  upon  all  the  points  referred  to  by  Mr.  Beldiman, 
the  reporter  thinks  that  the  Commission  should  refrain  from  views  of  too  absolute 
a  character.  One  thing  has  struck  him  in  the  various  objections  raised,  and  that 
is  that  they  are  objections  to  the  institution  itself,  which  Mr.  Beldiman  has 
sweepingly  condemned  without  endeavoring  to  see  whether  it  is  possible  to  dis- 
cover guaranties  to  perfect  it.  The  reporter  asks  that  the  guaranties  that  may  be 
found  necessary  be  indicated.  The  radical  suppression  of  Section  3  would  leave 
a  serious  gap,  and  the  work  as  a  whole  would  be  injured. 

The  reporter  expresses  the  opinion  that  by  keeping  at  the  question  the  ob- 
jections can  be  taken  into  account,  and  it  is  along  these  lines  that  the  Commission 
should  seek  to  reach  an  agreement  by  formulating  guaranties,  particularly  as  re- 
gards the  small  States. 

Mr.  Martens  delivers  the  following  address : 

Gentlemen,  before  presenting  certain  explanations  regarding  the  draft,  which 
was  unanimously  adopted  yesterday  by  the  committee  of  examination,  I  take  the 
liberty  of  again  craving  your  indulgence.  Without  going  exhaustively  into  the 
-question  of  competence,  on  which  the  reporter  has  already  spoken,  I  should  like 
nevertheless  to.  add  certain  considerations. 

On  referring  to  Count  Mouravieff's  circular,  I  am  absolutely  convinced  that 
the  institution  of  international  commissions  of  inquiry  was  included  under  point  8 
-and  that  it  was  an  integral  part  of  the  program  submitted  to  the  Powers  repre- 
sented in  this  high  assembly. 

International  commissions  of  inquiry  do  not,  in  the  opinion  of  the  Imperial 
'Government,  belong  to  the  class  of  questions  "  connected  with  the  program."  This 
matter  comes  absolutely  within  the  scope  of  the  program  itself.  There  is  not  the 
slightest  doubt  on  this  score.  In  submitting  to  the  Conference  on  May  26  a 
project  of  which  this  institution  formed  a  part,  the  Imperial  Government  was 
holding  to  its  program ;  it  was  not  enlarging  its  scope,  and  it  did  not  consider  that 
it  was  presenting  questions  foreign  to  its  purpose. 

Permit  me,  gentlemen,  to  add  a  few  more  considerations  on  international  com- 
missions of  inquiry,  which  are  the  subject  of  our  present  discussion.  What  is 
their  object?  It  has  been  said  that  they  pertain  to  politics ;  it  has  been  said  that 
they  belong  to  the  domain  of  theory.  But  I  am  in  a  position  to  state  most  posi- 
tively that  the  articles  concerning  commissions  of  inquiry  have  no  political  aim 
and  do  not  meddle  with  the  policies  of  any  State,  be  it  a  great  or  a  small  Power, 
J)e  it  in  the  east  or  in  the  west. 

Politics,  as  we  well  know,  are  excluded  from  our  debates ;  they  do  not  appear 


SIXTH  MEETING,  JULY  19,  1899  641 

on  our  order  of  business.     The  circulars  of  Count  Mouravieff  and  of  Mr.  de 
Beaufort  vouch  for  this. 

The  object  of  commissions  of  inquiry  is  the  same  as  that  of  arbitration,  good 
offices,  and  mediation,  namely,  to  point  out  all  the  means  of  allaying  disputes  aris- 
ing among  nations  and  to  prevent  war.  This  is  their  only  object  and  they  have  no 
other.  The  commissions  provide  the  means  for  this  by  an  impartial  exami- 
[42]  nation  of  the  circumstances  and  of  the  facts.  It  is  not  necessary  to  cite 
cases  in  which  these  commissions  of  inquiry  can  render  great  service  to  the 
peace  of  the  world,  but  let  us  take  one  case.  Suppose  the  authorities  on  a  frontier 
arrest  somebody  on  foreign  territory.  A  most  serious  dispute  may  arise  as  the 
result  of  such  an  arrest  —  the  more  obscure  the  circumstances  remain,  the  more 
is  popular  feeling  inflamed.  Newspaper  articles,  interpellations  In  parliament, 
may  force  the  hands  of  the  Governments  and  involve  them  in  conduct  that  is  the 
very  opposite  of  their  intentions.  One  may  compare  these  commissions  of  inquiry 
to  a  safety  valve  put  into  the  hands  of  Governments.  They  are  able  to  say  to 
over-excited  and  ill-informed  public  opinion,  "  Wait !  We  shall  organize  a  com- 
mission which  will  go  to  the  spot  and  secure  all  the  necessary  information;  in  a 
word,  it  will  throw  light  on  the  matter."  In  that  way  time  is  gained,  and  in 
international  life  a  day  gained  may  save  the  future  of  a  nation.  The  object  of 
commissions  of  inquiry  is  therefore  clear.  They  are  the  instruments  of  pacifica- 
tion. A  misunderstanding  seems  to  exist  in  regard  to  their  operation,  but  one 
should  not  forget  that  the  litigating  Powers  are  always  free  to  accept  them  or  to 
refuse  their  services. 

Gentlemen,  I  fully  share  the  opinion  that  the  floor  of  a  diplomatic  confer- 
ence is  not  a  tribune  from  which  to  make  great  speeches.  Our  Conference  has 
been  called  an  International  Parliament ;  but  whatever  name  is  given  to  the  Con- 
ference, all  the  delegates  know  that  this  high  assembly  is  not  concerned  with  the 
politics  of  the  day,  nor  with  the  international  treaties  which  regulate  the  present 
relations  among  States. 

It  is  our  common  purpose  to  give  a  more  solid  basis  to  peace,  to  concord,  and 
to  friendship  among  nations. 

Such,  gentlemen,  is  the  object  indicated  by  my  august  sovereign  and  accepted 
by  you  all.  It  is  certain  that,  especially  at  the  beginning  of  our  work  in  this  Con- 
ference, the  diversity  of  opinions  and  ideas  was  great  among  us,  but  in  the  course 
of  our  common  labors  we  have  come  to  know  one  another  better,  to  understand 
one  another,  and  to  have  greater  mutual  esteem  and  the  growing  conviction  that 
we  are  working,  not  for  a  political,  but  for  a  humanitarian  purpose,  not  for  the 
past  nor  for  the  present,  but  for  the  future.  That  is  why  the  relations  among  us, 
the  members  of  this  Conference,  have  become  day  by  day  more  cordial,  our 
handclasps  warmer.  The  feeling  that  we  are  all  following  a  common  path  has 
filled  us  with  the  desire  to  succeed  in  presenting  to  our  Governments  a  good, 
great,  and  noble  work,  from  which  all  questions  of  sovereignty  and  politics  should 
be  formally  excluded. 

Gentlemen,  if  in  private  life  that  man  is  happy  who  looks  on  the  bright  side 
of  things,  in  international  life  that  man  is  great  who  sees  things  whole.  We  must 
not  remain  in  the  valley  if  we  wish  to  broaden  our  horizon. 

We  must  do  all  we  can  to  understand  one  another,  for  with  mutual  under- 
standing comes  mutual  esteem.  Consider  for  a  moment  the  example  offered 
us  by  this  small  and  charming  country  whose  guests  we  are. 


642  THIRD  COMMISSION 

Why  has  little  Holland  played  so  great  a  part  in  history?  Why  have  her 
commerce  and  her  ships  spread  over  all  the  oceans  ?  It  is  because  the  Dutch  have 
not  remained  behind  their  dunes ;  they  have  climbed  to  the  top  of  those  dunes  and 
breathed  in  the  air  of  the  sea.  They  perceived  a  vast  horizon  and  they  followed 
the  paths  stretched  out  before  them,  which  have  put  them  in  direct  communication 
with  all  the  nations  of  the  globe. 

That  is  the  explanation  of  the  cosmopolitan  spirit  which  has  at  all  times  dis- 
tinguished the  artists,  the  writers,  and  the  statesmen  of  this  little  country.  But, 
gentlemen,  Holland  has  done  far  more.  In  her  fight  against  the  invasion  of  the 
sea  she  has  constructed  locks  by  means  of  which  her  land  waters  and  the  tides  of 
the  sea  have  been  joined  and  mingled,  just  as  the  ideas,  the  institutions,  and  the 
customs  of  the  Dutch  nation  have,  thanks  to  its  international  relations,  been  devel- 
oped, clarified,  and,  so  to  speak,  crystallized.  Might  it  not  be  said,  to  continue  the 
simile,  that  when  they  look  out  upon  the  common  horizon  of  humanity  national 
ideas  broaden  and  become  harmonized  ?  To  reach  the  results  attained  by  Holland, 
let  us  follow  that  country's  example:  let  us  climb  to  the  top  of  our  dunes  and 
direct  our  gaze  upon  a  broader  horizon.  Let  us  open  up  the  locks  and  show  that 
we  did  not  build  them  for  selfish  ends  nor  with  any  thought  of  exclusiveness  in 
mind. 

The  barriers  of  prejudice  must  fall,  and  then  we  shall  see  a  spirit  of  under- 
standing and  of  mutual  confidence  in  dealing  with  all  questions. 

Concord,  gentlemen,  should  be  the  watchword  and  the  aim  of  our  labors. 
Mr.  Beldiman  replies  that  Mr.  Martens  has  held  up  the  example  of  Holland 
to  the  nations  represented  at  the  Conference.  Roumania  would  indeed  be  happy 
if  she  could  look  back  upon  a  past  of  several  centuries  of  civilization,  of  struggle, 
and  of  progress.  Unfortunately  scarcely  thirty  years  have  elapsed  since  she 
began  her  career  as  a  modern  nation.  This  is  a  situation  of  inferiority  which  it 
would  be  unjust  to  dwell  upon,  and  Mr.  Beldiman  would  have  preferred  that  the 

example  in  question  had  not  been  pointed  to. 
[43]  The  President  says  that  if  he  had  considered  it  possible  that  the  preceding 
speaker  had  any  such  intention  in  mind,  he  would  not  have  allowed  it  to 
pass.  Nothing  in  Mr.  Martens'  address  could  have  referred  to  the  particular 
situation  of  the  country  which  Mr.  Beldiman  represents.  Mr.  Martens  merely 
wished  to  make  an  appeal  to  all  the  members  of  the  assembly,  inviting  them  to 
rise  above  their  own  frontiers  and  to  contemplate  only  the  frontiers  of  humanity. 
(Applause.) 

Mr.  Beldiman  reverts  to  the  arguments  against  his  contentions.  In  saying 
that  international  commissions  of  inquiry  might  bring  into  the  case  Powers  for- 
eign to  the  dispute,  he  had  nothing  else  in  mind  than  the  composition  of  these 
commissions  as  laid  down  in  Article  31.  It  is  provided  that  an  international 
commission  of  inquiry  operating  in  a  certain  territory  with  the  object  of  settling 
a  dispute  between  two  States  might  call  upon  States  other  than  those  actually  con- 
cerned to  intervene.  Mr.  Beldiman  did  not  say  that  the  Powers  would  intervene 
in  the  constitution  of  the  commission ;  he  spoke  only  of  the  composition  of  the 
commission,  and  he  wanted  to  prove  the  absolutely  essential  difference  in  principle 
which  should  exist  between  the  composition  of  an  arbitration  tribunal,  which 
passes  as  a  sovereign  upon  the  law,  and  that  of  a  commission  of  inquiry,  which 
seeks  to  ascertain  on  the  spot  a  question  of  fact. 


SIXTH  MEETING,  JULY  19,  1899  643 

It  has  been  said  that  the  original  Russian  project  provided  for  a  similar  organ- 
ization, to  which  no  objection  was  raised.  Mr.  Beldiman  recalls  that  this  project 
was  not  subjected  to  any  general  discussion.  A  small  committee  immediately  took 
charge  of  it  for  study  and  the  first  delegates  had  no  means  of  taking  part  in  that 
study  or  of  communicating  the  views  of  their  Governments.  Furthermore,  it  is 
to  be  noted  that  in  the  various  phases  through  which  this  examination  passed,  the 
representatives  of  the  press  seem  to  have  enjoyed  a  genuine  privilege  in  the  matter 
of  information. 

The  President  interrupts  Mr.  Beldiman  with  the  request  that  he  do  not  bring 
a  personal  matter  into  a  debate  in  which  there  is  need  of  good-will  and  union  on 
the  part  of  all. 

Mr.  Beldiman  replies  that  he  must  nevertheless  persist  in  stating  that  up  to 
the  present  moment  no  opportunity  has  been  afforded  him  to  express  his  views 
before  the  committee  or  elsewhere ;  there  should  be  no  surprise  therefore  that  he 
now  presents  his  objections  to  a  draft  which  came  to  his  knowledge  only  a  few 
days  ago. 

Returning  to  the  Russian  project,  Mr,  Beldiman  points  out  the  important 
difference  between  the  organization  provided  for  in  that  project  and  the  organiza- 
tion which  is  proposed  by  the  committee  of  examination.  Article  16  of  the  Rus- 
sian project  contemplates  the  case  of  a  serious  disagreement  or  a  dispute,  that  is  to 
say,  a  situation  which  may  lead  to  war.  The  present  draft  does  not  confine  itself 
to  such  a  case.  Mr.  Beldiman  feels  that  he  must  once  more  point  out  this 
important  difference. 

The  President  says  that  the  general  discussion  of  the  draft  on  first  reading 
is  closed.  He  asks  Mr.  Beldiman  whether  he  desires  a  vote,  before  the  Commis- 
sion passes  to  a  discussion  of  the  articles,  on  the  suppression  pure  and  simple  of 
Section  3  relative  to  international  commissions  of  inquiry. 

On  Mr.  Beldiman's  objecting  to  the  Commission's  passing  to  a  vote  after  the 
first  reading,  which  is  contrary  to  the  procedure  followed  up  to  the  present  time, 
the  President  declares  the  discussion  on  Articles  9  to  13  open. 

Article  9  is  read : 

In  disputes  of  an  international  nature  arising  from  a  difference  of  opinion  regarding 
facts  which  may  form  the  object  of  local  determination,  and  besides  involving  neither  the 
honor  nor  vital  mterests  of  the  interested  Powers,  these  Powers,  in  case  they  cannot  come 
to  an  agreement  by  the  ordinary  means  of  diplomacy,  agree  to  have  recourse,  so  far  as  cir- 
cumstances allow,  to  the  institution  of  international  commissions  of  inquiry,  in  order  to 
elucidate  on  the  spot,  by  means  of  an  impartial  and  conscientious  investigation,  all  the  facts. 

This  article  is  adopted  subject  to  second  reading. 
Article  10  is  read : 

The  international  commissions  of  inquiry  are  constituted,  unless  otherwise  stipulated, 
in  the  manner  determined  by  Article  31  of  the  present  Convention. 

The  President  says  that  he  has  received  from  his  Excellency  Mr.  Eyschen 
an  amendment  to  this  article  reading  as  follows : 

Where  there  are  special  provisions,  the  procedure  for  inquiry  shall 
be  determined  by  the  principles  contained  in  the  rules  in  Articles  29  bis  et  seq. 
relating  to  arbitration  procedure,  so  far  as  these  principles  are  applicable  to 
the  institution  of  international  commissions  of  inquiry. 


644  THIRD  COMMISSION 

[44]   His  Excellency  Mr.  Eyschen  says  that  he  desires  to  call  attention  to  an 
omission  in  Article  10.     This  article  tells  how  the  commissions  of  inquiry 
shall  be  constituted,  but  does  not  contain  the  rules  which  shall  govern  their  opera- 
tion. 

It  is  often  not  an  easy  thing  to  pursue  the  quest  of  truth,  to  distinguish  the 
pertinent  and  relevant  facts,  and  to  state  the  results  adequately  from  a  legal 
point  of  view.  Furthermore  the  rights  of  the  parties  concerned  must  be  guaran- 
teed against  prejudice,  artifice,  and  personal  feelings.  There  are  rules  that  it  is 
essential  to  observe,  which  will  insure  the  sincerity  and  efficacy  of  this  means  of 
investigation.  Jurists  are  accustomed  to  observe  these  rules;  but  international 
investigations  will  frequently  be  entrusted  to  technical  men  who  are  not  jurists, 
who  will  perform  their  duties  in  remote  countries,  who  must  act  quickly  in  order 
to  get  at  the  truth  before  all  traces  of  it  are  lost,  and  who  consequently  will  not  be 
able  to  inform  themselves  as  to  the  legal  difficulties.  Rules  of  procedure  for 
international  inquiries  would  therefore  be  still  more  necessary  in  this  case  than 
in  the  matter  of  arbitration,  for  which  rules  are  laid  down  in  Articles  29  et  seq. 
It  is  too  late  to  draw  up  such  rules. 

Perhaps  we  might  confine  ourselves  to  referring  to  the  general  principles 
underlying  arbitration  procedure,  in  so  far  as  those  principles  are  applicable  to 
commissions  of  inquiry.  Mr.  Eyschen  cites  as  examples  among  other  provisions 
those  prescribing  that  the  compromis  must  state  clearly  the  matter  in  dispute  and 
the  powers  of  the  arbitrators,  that  the  tribunal  shall  determine  its  competence  and 
rules  of  procedure,  that  the  documents  produced  must  be  communicated  to  all  the 
parties  involved. 

Chevalier  Descamps  says  that  the  amendment  presented  by  his  Excellency 
Mr.  Eyschen  belongs  to  the  class  of  guaranties  which  were  referred  to  at  the 
beginning  of  the  meeting  and  which  might  be  applied  to  advantage  to  the  organiza- 
tion of  international  commissions  of  inquiry.  Chevalier  Descamps  thinks  that  it 
would  be  well  to  adopt  Mr.  Eyschen's  proposal,  subject  to  formulation  of  its  text 
and  taking  into  account  the  maxim  mutatis  mutandis. 

The  President  says  that  this  amendment  will  be  referred  to  the  committee  of 
examination. 

Dr.  Zorn  desires  to  be  assured  that  this  reference  does  not  imply  the  adoption 
of  the  principle,  to  which,  so  far  as  he  is  concerned,  he  cannot  agree. 

Mr.  Hells  says  that  it  is  very  important  not  to  have  any  confusion  between 
the  operation  of  arbitration  and  the  operation  of  commissions  of  inquiry,  which 
latter  is  merely  of  an  auxiliary  character.  Mr.  Holls  would  be  unable  at  present 
to  accept  the  principle  of  the  amendment,  and  he  also  desires  to  have  it  noted  that 
the  Commission  has  not  adopted  it. 

Mr.  Lammasch  explains  the  essential  diflference  between  the  object  of  com- 
missions of  inquiry  and  that  of  arbitration.  The  purpose  of  the  former  is  to 
investigate  a  local  dispute ;  the  latter,  on  the  contrary,  is  required  to  take  cogni- 
zance of  points  of  law  and  of  fact.  The  operation  of  the  commissions  is  there- 
fore much  simpler  than  that  of  arbitration,  and  though  the  two  institutions  may 
have  some  provisions  in  common,  we  must  not  be  misled  into  supposing  that  they 
can  be  made  to  coincide  absolutely. 

Mr.  Martens  states  that  he  concurs  in  Mr.  Lammasch's  opinion. 
The  President  explains  that  this  is  simply  a  reference  to  the  committee,  the 
question  being  left  absolutely  open,  with  no  implication  as  to  the  adoption  of  the 
principle  of  the  amendment. 


SIXTH  MEETING,  JULY  19,  1899  645 

His  Excellency  Mr.  Eyschen  replies  that  his  sentiments  were  similiar  to 
those  of  the  preceding  speakers.  That  is  why  his  amendment  does  not  refer  to 
specific  articles,  but  to  their  underlying  principles,  and  then  only  in  so  far  as  these 
principles  are  applicable  to  commissions  of  inquiry.  Investigations  by  the  latter 
are  at  bottom  real  cases  like  those  submitted  to  arbitrators,  but  they  are  concerned 
only  with  questions  of  fact.  There  is  a  dispute,  a  controversy.  If  such  investi- 
gations are  carried  on  before  arbitrators,  they  will  be  governed  by  Articles  29 
et  seq.,  so  far  as  applicable.  We  must  confine  ourselves  to  setting  forth  in 
Article  10  the  rules  essential  to  every  investigation. 

The  President  says  that  it  is  understood  that  the  committee  of  examination 
will  study  the  question  and  that  he  will  be  glad  to  have  Mr.  Eyschen  collaborate 
in  this  study. 

With  this  reservation,  Article  10  is  adopted. 

Article  1 1  is  read : 

The  interested  Powers  undertake  to  supply  the  international  commission  of  inquiry, 
as  fully  as  they  may  think  possible,  with  all  means  and  facilities  necessary  to  enable  it  to 
become  completely  acquainted  with  and  to  accurately  understand  the  facts  in  question. 

This  article  is  adopted. 
Article  12  is  read : 

The  international  commission  of  inquiry  communicates  its  report  to  the  Powers  in  dis- 
pute, signed  by  all  the  members  of  the  commission. 

This  article  is  adopted. 
Article  13  is  read : 

[45]    The  report  of  the  international  commission  of  inquiry  has  in  no  way  the  character  of 
an  arbitral  award.    It  leaves  to  the  Powers  in  dispute  the  option  either  of  concluding  a 
friendly  arrangement  on  the  basis  of  this  report  or  of  having  recourse  subsequently  to  medi- 
ation or  arbitration. 

Mr.  Stancioff  recalls  that  he  proposed  at  the  beginning  of  the  meeting  an 
amendment  to  this  article,  which  might  be  worded  as  follows : 

It  leaves  to  the  Powers  in  controversy  entire  freedom  either  to  conclude 
a  friendly  settlement  based  upon  this  report,  or  to  consider  the  report  as 
never  having  been  made. 

The  President  says  that  this  amendment  will  be  referred  to  the  committee  of 
examination  and  declares  Article  13  adopted  with  this  reservation. 

His  Excellency  Turkhan  Pasha  says  that  he  must  reiterate,  on  the  first 
reading  of  Section  3,  the  express  reservations  which  he  formulated  on  the  first 
reading  of  Section  4. 

His  Excellency  Turkhan  Pasha  is  informed  that  his  reservations  will  be 
put  on  record. 

The  President  says  that  the  Commission  has  now  completed  the  first  reading 
of  the  draft  as  a  whole.  Before  passing  to  the  second  reading,  the  committee  of 
examination  will  study,  in  conjunction  with  their  authors,  the  amendments  which 
have  been  presented  at  to-day's  meeting.     He  continues: 

All  of  the  objections  which  have  inspired  the  delegates  of  Roumania,  Serbia, 
and  Greece  have  repeatedly  occurred  to  most  of  the  members  of  the  committee. 
If  they  had  believed  that  the  proposals  which  were  adopted  contained  anything 


646        ,  THIRD  COMMISSION 

whatever  in  impairment  of  the  sovereignty  or  the  dignity  of  any  Power,  great  or 
small,  these  proposals  would  not  have  received  the  vote  of  a  single  member.  It 
does  not  seem  to  me  that  there  can  be  any  real  objection  on  the  merits,  but  it  is 
possible  that  the  form  may  well  be  capable  of  improvement.  We  are  ready  to 
make  every  effort  to  come  to  an  agreement  with  our  dissenting  colleagues.  Ap- 
pealing to  the  sentiment  which  has  often  animated  us  in  the  course  of  our  delib- 
erations,—  namely,  the  wish  for  unanimity  in  our  decisions, —  I  say  to  Mr.  Beldi- 
MAN  and  to  the  delegates  of  Serbia  and  of  Greece :  "  Come  to  the  committee  of 
examination,  and  together  we  shall  weigh  in  the  balance  the  objections  which 
have  been  raised  to  this  proposal.  We  shall  endeavor  to  satisfy  you,  and,  after 
this  interchange  of  opposing  views,  we  shall  be  able  to  say  that  we  have  done 
everything  that  can  be  done  to  obtain  unanimity." 

Mr.  Beldiman  says  that  he  gladly  accepts  the  President's  invitation,  but  he 
repeats  that  his  instructions  are  formal  and  that  his  acceptance  does  not  bind  his 
Government. 

The  President  says  that  the  next  meeting  will  take  place  on  Thursday,  July 
20,  at  2  o'clock. 

The  meeting  adjourns. 


SEVENTH    MEETING 

JULY  20,  1899 


Mr.  Leon  Bourgeois  presiding. 

The  President  observes  that  proofs  of  the  minutes  of  the  last  meeting  will  be 
distributed  among  the  members  who  took  part  therein.  These  members  will 
kindly  inform  the  secretariat  of  any  changes  that  they  desire  made. 

The  order  of  business  calls  for  the  second  reading  of  the  arbitration  draft. 
The  discussion  on  commissions  of  inquiry,  however,  will  be  reserved  for  the  next 
meeting,  some  members  not  yet  having  received  instructions  on  the  subject. 

Chevalier  Descamps,  reporter,  says  that  the  committee  has  examined  a  num- 
ber of  the  points  upon  which  observations  have  been  made.  He  will  indicate 
them  as  the  articles  are  submitted  for  discussion. 

The  President  reads  Article  1 : 

With  a  view  to  obviating,  as  far  as  possible,  recourse  to  force  in  the  relations  between 
States,  the  signatory  Powers  agree  to  use  their  best  efforts  to  ensure  the  pacific  settlement 
of  international  differences. 

Chevalier  Descamps,  reporter,  makes  certain  explanations  with  regard  to  two 
slight  changes  which  the  committee  has  made  in  this  article. 
[46]   Mr.  Beldiman  remarks  that  on  the  first  reading  it  was  said  that  this  article 
might  be  considered  as  a  general  declaration  which  would  serve  as  a  pre- 
amble to  the  Convention.     He  inquires  why  it  has  been  preserved  as  a  special 
article. 

He  adds  that,  in  his  opinion,  the  word  agree  has  a  different  meaning  in  the 
following  articles  from  what  it  has  here. 

Chevalier  Descamps,  reporter,  replies  that  it  is  plain  that  the  article  in  ques- 
tion does  not  imply  a  formal  engagement  between  one  State  and  another. 

It  contains  merely  a  general  promise  to  use  one's  best  efforts,  and  not  a 
special  engagement. 

Mr.  Beldiman  desires  to  have  this  explanation  inserted  in  the  report. 

The  President  concurs  in  the  explanation  made  by  the  reporter  and  states 
that  this  will  be  done. 

The  article  is  adopted. 

The  President  reads  Article  2,  which  is  adopted  with  the  modification  pro- 
posed by  Mr.  Veljkovitch.  The  word  agree  will  be  substituted  for  have  de- 
cided, since,  in  the  opinion  of  the  delegate  of  Serbia,  the  former  expression  has 
a  more  contractual  meaning. 

The  article  is  adopted  in  the  following  form : 

647 


648  THIRD  COMMISSION 

In  case  of  serious  disagreement  or  dispute,  the  signatory  Powers  agree,  before  an  ap- 
peal to  arms,  to  have  recourse,  as  far  as  circumstances  will  allow,  to  the  good  offices  or 
mediation  of  one  or  more  friendly  Powers. 

The  Commission  passes  to  Article  3. 

Mr.  Veljkovitch  would  like  to  have  Article  3,  in  which  mention  is  made  of 
offered  mediation,  made  to  accord  with  Article  2,  which  treats  of  requested 
mediation.  It  should  likewise  be  stated  that  it  must  be  a  question  of  a  serious 
dispute.  He  therefore  proposes  that  the  expression  "  between  whom  there  has 
arisen  a  serious  dispute  that  may  lead  to  a  rupture  of  peaceful  relations"  be  sub- 
stituted for  the  words  "  at  variance  "  appearing  in  the  first  paragraph. 

Chevalier  Descamps  is  of  the  opinion  that  the  two  articles  are  in  accord. 
In  his  opinion,  there  is  no  possible  doubt  but  that  Article  3  likewise  applies  only 
to  cases  of  serious  disagreement  that  might  lead  to  war. 

The  new  wording,  however,  has  the  defect  of  rendering  the  phraseology  more 
uncertain.     The  question  might  be  examined  by  the  committee  of  examination. 

The  President  shares  this  view. 

Mr.  Veljkovitch  says  that  since  the  explanations  which  have  been  made 
accord  with  his  view,  he  would  be  satisfied  if  the  explanations  are  inserted  in 
the  minutes  as  being  the  Commission's  official  interpretation. 

It  is  decided  that  this  shall  be  done. 

Mr.  Lammasch  presents  an  additional  argument  in  favor  of  this  interpreta- 
tion: the  fact  that  in  paragraph  2  mention  is  made  of  the  course  of  hostilities 
proves  that  it  is  indeed  a  case  of  serious  disagreement  or  of  a  dispute  that  might 
lead  to  the  rupture  of  peaceful  relations  that  the  Commission  had  in  mind. 

Mr.  Veljkovitch  observes  that  it  is  stated  in  paragraph  3  that  the  exercise 
of  the  right  to  oflFer  good  offices  may  never  be  considered  by  either  of  the  parties 
at  variance  as  an  unfriendly  act.  It  would  likewise  be  proper  to  provide  for  the 
case  in  which  the  Power  to  whom  good  offices  have  been  tendered  is  not  in  a 
position  to  accept  them,  and  he  proposes  that  it  be  decided  that  the  refusal  in 
question  likewise  may  not  be  regarded  as  an  unfriendly  act. 

Mr.  Asser  observes  that  this  question  was  examined  by  the  committee  of 
examination,  who  were  of  the  opinion  that  it  was  not  desirable  to  insert  a  clause  of 
this  kind  in  a  convention  whose  aim  was  to  encourage  all  measures  which  might 
bring  about  peace.  Mr.  Veljkovitch's  proposal  would  tend  to  thwart  this  pur- 
pose ;  it  would  be  almost  an  invitation  to  refuse  mediation.  It  goes  without  saying 
that  a  refusal  may  never  be  regarded  as  an  unfriendly  act. 

The  President  and  the  Reporter  observe  that  Article  6  does,  as  a  matter  of 
fact,  meet  Mr.  Veljkovitch's  wishes,  for  it  covers  the  case  of  an  offer  as  well  as 
that  of  a  request. 

His  Excellency  Count  Nigra,  as  author  of  paragraph  3  of  this  article,  desires 
to  state  that  he  never  for  an  instant  considered  that  an  offer  of  this  kind  might 
not  be  of  a  friendly  nature. 

Dr.  Zorn  states  that  what  Mr.  Veljkovitch  has  said  is  perfectly  evident. 
Our  work  here  is  in  the  interest  of  the  general  peace,  and  that  being  so,  it  is  not 
fitting  to  speak  of  a  refusal,  which  is  an  act  that  may  bring  about  war, 

Mr.  Veljkovitch  does  not  see  why  the  refusal  of  an  inopportune  offer  of 
good  offices  should  be  regarded  as  an  act  of  greater  danger  to  the  maintenance  of 
peaceful  relations  between  the  States  than  the  inopportune  offer  itself.  Quite  the 
contrary,  it  is  the  offer  that  may  cause  friction  and  envenom  the  relations  between 


SEVENTH  MEETING,  JULY  20,  1899  649 

the  States,  while  the  refusal  is  nothing  more  than  a  legitimate  act  of  self-defense 

against  outside  interference. 
[47]   Mr.  Lammasch  remarks  that  Article  5  provides  for  the  case  of  an  inter- 
ruption of  mediation ;  it  is  therefore  evident  a  fortiori  that  mediation  may 
be  declined  at  the  outset. 

Mr.  Beldiman  is  of  the  opinion  that  the  Commission  might  confine  itself  to 
mentioning  this  interpretation  in  the  minutes. 

The  President  states  that  the  refusal  of  the  offer  may  not  be  regarded  as 
an  unfriendly  act. 

There  is  no  doubt  on  this  score. 

Articles  5  and  6  would  seem  to  give  sufficient  satisfaction  in  this  respect. 

But  the  committee  does  not  wish  to  appear  as  encouraging  refusal  by  adopting 
an  express  provision,  as  desired  by  the  delegate  of  Serbia, 

Mr.  Veljkovitch  would  be  satisfied  with  this  interpretation,  provided  it  be 
adopted  by  the  Commission  and  inserted  in  the  minutes  as  the  official  interpre- 
tation. 

It  is  decided  that  this  shall  be  done. 

Article  3  is  adopted  without  change  as  follows: 

Independently  of  this  recourse,  the  signatory  Powers  deem  it  expedient  that  one  or 
more  Powers,  strangers  to  the  dispute,  should,  on  their  own  initiative,  and  as  far  as  cir- 
cumstances may  allow,  offer  their  good  offices  or  mediation  to  the  States  at  variance. 

Powers  strangers  to  the  dispute  have  the  right  to  offer  good  offices  or  mediation,  even 
during  the  course  of  hostilities. 

The  exercise  of  this  right  can  never  be  regarded  by  either  of  the  parties  in  dispute 
as  an  unfriendly  act. 

Article  4  is  adopted  without  change  in  the  following  form : 

The  part  of  the  mediator  consists  in  reconciling  the  opposing  claims  and  appeasing  the 
feelings  of  resentment  which  may  have  arisen  between  the  States  at  variance. 

Article  5  is  adopted  with  a  slight  modification  made  by  the  committee  of 
examination,  in  order  to  include  in  it  every  means  of  conciliation.  It  will  read 
as  follows : 

The  functions  of  the  mediator  are  at  an  end  when  once  it  is  declared,  either  by  one 
of  the  parties  to  the  dispute,  or  by  the  mediator  himself,  that  the  means  of  reconciliation 
proposed  by  him  are  not  accepted. 

Articles  6,  7,  and  8  are  adopted  without  change  in  the  following  form : 

Article  6 

Good  offices  and  mediation,  undertaken  either  at  the  request  of  the  parties  in  dispute, 
or  on  the  initiative  of  Powers  strangers  to  the  dispute,  have  exclusively  the  character  of 
advice  and  never  have  binding  force. 

Article  7 

The  acceptance  of  mediation  cannot,  unless  there  be  an  agreement  to  the  contrary, 
have  the  effect  of  interrupting,  delaying,  or  hindering  mobilization  or  other  measures  of 
preparation  for  war. 

If  it  takes  place  after  the  commencement  of  hostilities,  the  military  operations  in  prog- 
ress are  not  interrupted,  unless  there  be  an  agreement  to  the  contrary. 


650  THIRD  COMMISSION 

Article  8 

The  signatory  Powers  are  agreed  in  recommending  the  application,  when  circumstances 
allow,  of  special  mediation  in  the  following  form: 

In  case  of  a  serious  difference  endangering  the  peace,  the  States  at  variance  choose 
respectively  a  Power,  to  which  they  entrust  the  mission  of  entering  into  direct  communica- 
tion with  the  Power  chosen  on  the  other  side,  with  the  object  of  preventing  the  rupture  of 
pacific  relations. 

For  the  period  of  this  mandate,  the  term  of  which,  unless  otherwise  stipulated,  cannot 
exceed  thirty  days,  the  States  in  dispute  cease  from  all  direct  communication  on  the  subject 
of  the  dispute,  which  is  regarded  as  referred  exclusively  to  the  mediating  Powers,  which 
must  use  their  best  efforts  to  settle  it. 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are  charged  with  the 
joint  task  of  taking  advantage  of  any  opportunity  to  restore  peace. 

Mr.  Miyatovitch  reads  the  following  declaration,  in  the  name  of  the  Royal 
Government  of  Serbia : 

In  the  name  of  the  Royal  Government  of  Serbia,  we  have  the  honor  to  declare 

that  the  adoption  by  us  of  the  principle  of  good  offices  and  mediation  does 

[48]  not  imply  recognition  of  the  right  of  third  States  to  use  these  means  except 

with  the  extreme  caution  required  by  the  delicate  nature  of  such  measures. 

We  shall  admit  good  offices  and  mediation  only  on  condition  that  they  pre- 
serve fully  and  wholly  their  character  of  purely  friendly  counsel,  and  we  can 
never  accept  them  in  such  form  and  circumstances  as  might  brand  them  with  the 
stamp  of  intervention. 

The  delegate  of  Serbia  is  informed  that  official  note  is  made  of  his  declara- 
tion. 

His  Excellency  Noury  Bey  states  that,  not  having  received  instructions,  the 
Turkish  delegation  abstains  from  voting  on  paragraph  1. 

The  Commission  passes  to  Section  4. 

Article  14  is  adopted  without  change  in  the  following  form : 

International  arbitration  has  for  its  object  the  settlement  of  disputes  between  States 
by  judges  of  their  own  choice  and  on  the  basis  of  respect  for  law. 

As  regards  Article  15,  Mr.  Pompilj  says  that  the  words  "  questions  of  law  " 
(questions  de  droit)  might  be  ambiguous.  It  is  as  if  we  admitted  that  there  are 
wars  arising  from  other  causes  than  the  claiming  or  defense  of  a  right  {droit). 
He  proposes  that  the  expression  "  questions  of  a  legal  nature  "  {questions  d'ordre 
juridique)  be  substituted. 

This  amendment  is  adopted. 

The  article  will  therefore  read  as  follows : 

In  questions  of  a  legal  nature,  and  especially  in  the  interpretation  or  application  of 
international  conventions,  arbitration  is  recognized  by  the  signatory  Powers  as  the  most 
effective  and  at  the  same  time  the  most  equitable  means  of  settling  disputes  which  diplomacy 
has  failed  to  settle. 

Mr.  Beldiman  has  been  charged  by  his  Government  to  make  the  following 
declaration : 

The  Royal  Government  of  Roumania,  which  is  entirely  in  favor  of  optional 
arbitration,  the  great  importance  of  which  in  international  relations  it  fully  appre- 
ciates, does  not  understand  that  by  Article  15  it  is  agreeing  to  accept  arbitration 


SEVENTH  MEETING,  JULY  20,  1899  651 

in  all  cases  therein  provided  for,  and  it  feels  that  it  must  formulate  express  reser- 
vations in  this  respect. 

It  can  therefore  vote  for  this  article  only  with  this  reservation. 

The  delegate  of  Roumania  is  informed  that  official  note  is  made  of  his 
declaration. 

With  regard  to  Article  16,  Mr.  Beldiman  observes  that  his  Government  can 
adhere  to  it  only  if  it  is  understood  that  it  does  not  relate  to  disputes  which  have 
arisen  before  the  adoption  of  the  project.     He  reads  the  following  declaration: 

The  Royal  Government  of  Roumania  declares  that  it  can  adhere  to  Article 
16  only  with  the  express  reservation,  to  appear  in  the  minutes,  that  it  is  resolved 
not  to  accept  in  any  event  international  arbitration  for  the  settlement  of  disputes 
or  disagreements  which  have  arisen  previous  to  the  conclusion  of  the  present 
convention. 

The  delegate  of  Roumania  is  informed  that  official  note  is  made  of  this  decla- 
ration. 

Mr.  Veljkovitch  understands  Article  16  as  being,  not  an  engagement,  but 
simply  an  option,  of  which  the  respective  Governments  are  absolutely  free  to  avail 
themselves  or  not.  Consequently  they  may,  if  they  are  able  to  come  to  an  agree- 
ment, make  conventions  with  regard  to  controversies  which  have  already  arisen, 
but  they  are  not  obliged  to  do  so. 

Mr.  Rolin  desires  to  state  that  this  declaration  can  in  no  way  bind  the  other 
Powers. 

Mr.  Stancioff  observes  that  Article  16  speaks  of  the  arbitration  convention, 
without  having  given  a  preliminary  explanation  of  that  convention.  He  would 
like  to  inquire  whether  we  are  to  understand  by  the  expression  "  arbitration  con- 
vention "  the  agreement  by  means  of  which  existing  differences  are  to  be  settled 
by  arbitration,  and  whether  that  convention  will  contain  the  principles  which  will 
guide  the  arbitrators  in  their  consideration  and  decision  of  the  difiference. 

Article  16  is  adopted  in  the  following  form : 

The  arbitration  convention  is  concluded  for  questions  already  existing  or  for  questions 
which  may  arise  eventually. 

It  may  embrace  any  dispute  or  only  disputes  of  a  certain  category. 

With  regard  to  Article  17,  Mr.  Stancioff  says  that  Articles  17  and  30  speak 
of  the  agreement  to  comply  with  the  arbitral  award. 

Is  it  not  advisable  to  state  whether  there  is  a  case  in  which  the  parties  are 
released  from  their  engagement,  and  should  not  the  contents  of  Article  26  be 
quoted  here?  (Paragraph  1:  The  arbitral  award  is  void  in  case  of  a  void 
compromis  or  exceeding  of  power  or  of  corruption  proved  against  one  of  the 

arbitrators. —  Old  draft  of  arbitration  code.) 
[49]  Articles  17  and  18  are  likewise  adopted  in  the  following  form : 

Article  17 

The  arbitration  convention  implies  an  engagement  to  submit  in  good  faith  to  the  arbi- 
tral award. 

Article  18 

Independently  of  general  or  private  treaties  expressly  stipulating  recourse  to  arbitra- 
tion as  obligatory  on  the  signatory  Powers,  these  Powers  reserve  to  themselves  the  right 
of  concluding,  either  before  the  ratification  of  the  present  act  or  later,  new  agreements, 


652  THIRD  COMMISSION 

general  or  private,  with  a  view  to  extending  obligatory  arbitration  to  all  cases  which  they 
may  consider  it  possible  to  submit  to  it. 

Mr.  Beldiman  can  adhere  to  Article  18  only  with  the  reservation  set  forth 
in  the  following  declaration :  "  The  Royal  Government  of  Roumania  declares  that 
in  adhering  to  Article  18  of  the  Convention,  it  does  not  understand  that  it  is 
making  any  agreement  with  regard  to  obligatory  arbitration." 

(Article  19  has  been  replaced  by  Article  29  bis.) 

With  regard  to  Article  20,  Dr.  Zorn  states  that  the  German  Government 
objected  to  the  word  "  Court "  of  Arbitration.  As  he  had  the  reasons  for  this 
objection  inserted  in  the  minutes  of  the  committee  of  examination,  he  considers  it 
useless  to  repeat  them  here.  He  merely  desires  to  state  that  this  objection  is 
based  upon  the  following  consideration :  that  it  is  here  a  question  of  a  "  list " 
of  judges  rather  than  of  a  court  in  the  proper  sense  of  the  term. 

Article  20  is  adopted  in  the  following  form : 

With  the  object  of  facilitating  an  immediate  recourse  to  arbitration  for  international 
differences  which  it  has  not  been  possible  to  settle  by  diplomacy,  the  signatory  Powers 
undertake  to  organize  a  Permanent  Court  of  Arbitration,  accessible  at  all  times  and  oper- 
ating, unless  otherwise  stipulated  by  the  parties,  in  accordance  with  the  rules  of  procedure 
inserted  in  the  present  Convention. 

With  regard  to  Article  21,  Chevalier  Descamps  says  that  Count  de  Macedo 
has  requested  that  the  hope  be  expressed  therein  that  the  States  will  show  their 
preference  for  the  Permanent  Court  of  Arbitration  rather  than  for  special  arbi- 
tration tribunals. 

The  committee,  while  fully  approving  this  suggestion,  considered  it  inadvis- 
able to  insert  it.  The  expression  of  this  hope  would  seem  to  be  an  exertion  of 
too  much  pressure  on  the  Powers  to  induce  them  to  have  recourse  to  a  newly 
established  tribunal.  Chevalier  Descamps  believes  that  the  mention  of  these  con- 
siderations would  meet  the  wishes  of  Count  de  Macedo. 

The  Reporter  further  remarks  that  Mr.  Asser  has  proposed  a  similar  amend- 
ment, in  which  Count  de  Macedo  concurs. 

He  repeats,  however,  that  the  advantages  presented  by  this  amendment  do 
not  counterbalance  the  drawbacks  to  which  it  would  give  rise. 

Mr.  Asser  does  not  insist  upon  his  proposal. 

Count  de  Macedo  states  that  he  understands  and  respects  the  reporter's 
apprehensions,  although  he  does  not  entirely  share  them. 

Article  21  is  adopted  in  the  following  form : 

The  Permanent  Court  shall  be  competent  for  all  arbitration  cases,  unless  the  parties 
agree  to  institute  a  special  tribunal. 

In  Article  22  the  words  "  delivered  with  respect  to  them  "  (rendue  a  leur 
egard)  are  replaced  by  "  concerning  them  delivered  "  {les  concernant  et  rendue) 
and  the  article  is  adopted  in  the  following  form : 

An  International  Bureau,  established  at  The  Hague,  serves  as  registry  for  the  Court. 

This  Bureau  is  the  channel  for  communications  relative  to  the  meetings  of  the  Court. 

It  has  the  custody  of  the  archives  and  conducts  all  the  administrative  business. 

The  signatory  Powers  undertake  to  communicate  to  the  International  Bureau  at  The 
Hague  a  duly  certified  copy  of  any  conditions  of  arbitration  arrived  at  between  them  and 
any  award  concerning  them  delivered  by  a  special  tribunal. 


SEVENTH  MEETING,  JULY  20,  1899  653 

They  undertake  likewise  to  communicate  to  the  Bureau  the  laws,  regulations,  and 
documents  eventually  showing  the  execution  of  the  awards  given  by  the  Court. 

With  regard  to  Article  23,  the  Reporter  states  that  two  points  were  consid- 
ered by  the  committee.  Count  de  Macedo  had  requested  that  the  number  of 
persons  to  be  designated  by  each  State  as  members  of  the  Court  be  brought  back 

to  two. 
[50]   The  committee  examined  this  amendment  with  care. 

A  Power  having  insisted  that  the  number  of  four  members  should  be  pre- 
served and  several  others  having  supported  this  view,  it  was  so  decided. 

Moreover,  the  committee  would  consider  the  proposed  modification  improper, 
the  project  having  already  been  communicated  to  the  Powers. 

In  so  far  as  the  last  paragraph  is  concerned.  Count  de  Grelle  Rogier  called 
the  committee's  attention  to  the  situation  created  with  regard  to  the  members  of 
the  Court.  Will  those  of  its  members  who  are  in  their  own  country  enjoy  diplo- 
matic privileges  and  immunities  ? 

This  state  of  affairs  would,  in  the  opinion  of  the  representative  of  Belgium, 
cause  serious  difficulties  from  the  point  of  view  of  the  constitutional  law  of  some 
of  the  States.  The  committee  of  examination  considered  it  advisable  to  state  that 
only  the  members  who  are  foreigners  in  the  country  where  the  Court  sits  should 
enjoy  these  privileges  and  immunities. 

Consequently  it  was  decided  to  insert  after  the  word  "  duties "  the  words 
"and  out  of  their  ozvn  country." 

Count  de  Grelle  Rogier  states  that  he  is  not  entirely  satisfied  with  the  inser- 
tion of  these  words.     He  asks  when  these  privileges  and  immunities  begin. 

Mr.  Descamps  replies  that  they  begin  with  the  commencement  of  the  actual 
exercise  of  the  duties  of  arbitrator. 

Count  de  Grelle  Rogier  would  like  to  have  this  restriction  inserted  in  the 
article. 

Mr.  Martens  is  of  the  opinion  that  the  arbitrator  does  not  enter  upon  the 
exercise  of  his  duties  until  he  sets  out  for  the  country  where  the  Court  sits. 

In  order  to  meet  the  wishes  of  the  delegate  of  Belgium,  Mr.  Lammasch 
suggests  that  the  last  paragraph  of  Article  23  be  transferred  to  the  end  of  Article 
24.  It  would  then  be  perfectly  clear  that  this  provision  relates  only  to  the  mem- 
bers of  each  special  tribunal  during  the  performance  of  their  duties. 

Count  de  Grelle  Rogier  concurs  in  this  amendment,  which  is  approved  by 
the  Commission. 

Mr.  Asser,  going  back  to  the  amendment  submitted  by  Count  de  Macedo, 
observes  that  one  of  the  arguments  presented  in  favor  of  four  arbitrators  was  the 
following : 

This  admits  of  the  designation,  for  the  list,  of  members  of  different  profes- 
sions—  diplomats,  jurists,  military  men  —  and  thereby  enhances  the  prestige  of 
the  institution. 

He  asks  himself  whether  the  large  number  which  will  be  reached  if  each 
Power  should  name  four  members  would  not  thwart  this  purpose.  Moreover, 
the  three  requirements  which  a  person  must  fulfill  according  to  paragraph  1,  in 
order  to  appear  on  the  list  of  arbitrators,  would  not  seem  to  admit  of  extending 
the  selection  to  others  than  jurists  and  diplomats.  As  this  question  will  be  sub- 
mitted to  the  full  Conference,  he  asks  the  delegate  of  the  Power  which  proposed 
the  number  of  four,  whether  he  could  not  change  his  opinion. 


654  THIRD  COMMISSION 

Dr.  Zorn  does  not  see  that  the  three  above  requirements  exclude  the  appoint- 
ment of  persons  of  some  other  profession. 

Article  23  is  adopted  in  the  following  form : 

Within  the  three  months  following  its  ratification  of  the  present  act,  each  signatory 
Power  shall  select  four  persons  at  the  most,  of  known  competency  in  questions  of  interna- 
tional law,  of  the  highest  moral  reputation,  and  disposed  to  accept  the  duties  of  arbitrators. 

The  persons  thus  selected  shall  be  inscribed,  as  members  of  the  Court,  in  a  list  which 
shall  be  notified  to  all  the  signatory  Powers  by  the  Bureau. 

Any  alteration  in  the  list  of  arbitrators  is  brought  by  the  Bureau  to  the  knowledge  of 
the  signatory  Powers. 

Two  or  more  Powers  may  agree  on  the  selection  in  common  of  one  or  more  members. 

The  same  person  can  be  selected  by  diflferent  Powers. 

The  members  of  the  Court  are  appointed  for  a  term  of  six  years.  Their  appointments 
can  be  renewed. 

In  case  of  the  death  or  retirement  of  a  member  of  the  Court,  his  place  is  filled  in  the 
same  way  as  he  was  appointed. 

The  Commission  passes  to  Article  24. 

The  Reporter  calls  the  Commission's  attention  to  three  points : 

(1)  The  fact  had  not  been  sufficiently  emphasized  that  when  the  Powers 
desire  to  have  recourse  to  the  Permanent  Court,  the  selection  of  the  arbitrators 
must  be  made  from  the  general  list. 

(2)  The  present  reading  would  lead  to  the  belief  that  the  Powers  may  no- 
[51]  tify  their  decision  before  the  tribunal  is  fully  constituted.     This  is  a  defect 
which  the  committee  considered  ought  to  be  remedied. 

(3)  The  committee  was  of  the  opinion  that  it  would  be  preferable  to  insert 
the  last  three  paragraphs  of  Article  31  in  full  instead  of  merely  referring  to  that 
article. 

Consequently,  and  in  order  to  satisfy  certain  observations  made  by  Mr. 
RoLiN,  a  few  modifications  have  been  made. 

Count  de  Macedo  asks  for  explanations  as  to  the  manner  in  which  the 
umpire  will  be  chosen  after  the  parties  at  variance  have  both  designated  their 
arbitrators.  Will  they  come  to  an  understanding  directly  with  each  other  on  this 
score,  or  will  they  address  themselves  to  the  Bureau  ? 

The  Reporter  explains  that  no  notification  is  to  be  sent  to  the  Bureau  as 
long  as  the  selection  of  the  arbitrators  has  not  been  finally  determined. 

Baron  Bildt  regrets  that  the  committee  of  examination  did  not  adopt  his 
wording  in  the  matter  of  the  selection  of  an  umpire.  The  present  reading,  in  his 
opinion,  leaves  room  for  uncertainty. 

His  idea  has  been  partially  met.  It  is  stated  that  in  case  the  choice  of  the 
umpire  is  not  approved,  all  that  is  necessary  is  not  to  notify  the  Bureau. 

But  it  is  an  unsatisfactory  method  of  procedure  not  to  notify  the  Bureau  of 
the  constitution  of  the  tribunal  after  the  umpire  has  been  chosen. 

He  compares  this  expedient  with  slipping  out  by  the  back-stairs. 

Pie  would  prefer  some  other  method  of  settling  the  question. 

If,  for  example,  it  were  stated  in  the  minutes  that  the  two  arbitrators  are 
merely  the  agents  of  the  Government  that  has  elected  them  up  to  the  time  when 
they  enter  upon  the  performance  of  their  judicial  duties,  it  goes  without  saying 
that  the  selection  determined  upon  by  the  arbitrators  will  always  be  certain  to  be 
approved  by  the  Government. 


SEVENTH  MEETING,  JULY  20,  1899  655 

If  the  Commission  considers  that  the  arbitrators  are  —  as  regards  the  selec- 
tion of  the  umpire  —  the  agents  of  the  Governments  which  have  appointed  them, 
this  opinion  should  be  expressly  stated  in  the  minutes,  which  will  be  frequently 
consulted  as  a  commentary  on  the  draft  arbitration  convention. 

The  delegate  of  Sweden  and  Norway  would  be  satisfied  with  such  a  statement. 

The  Reporter  says  that  the  committee  unanimously  rejected  approval  of  the 
appointment  of  the  umpire  by  the  Governments.  This  method  of  procedure  might 
place  the  umpire  in  a  peculiar  position.  Under  these  circumstances,  he  would  not 
accept  the  office  tendered  him. 

This  would  give  rise  to  a  great  danger:  the  committee  agreed  upon  this 
point.  Chevalier  Descamps  thinks  that  what  Baron  Bildt  wishes  would  be 
brought  about  in  practice,  for  the  Governments  will  take  all  necessary  precau- 
tions and  may  exert  an  indirect  influence  in  the  matter  of  the  selection  of  the 
umpire.  But  he  must  energetically  oppose  the  system  of  approval  of  the  umpire 
by  the  Governments. 

In  practice  the  result  desired  by  the  delegate  of  Sweden  and  Norway  may  be 
attained,  but  the  whole  work  we  are  undertaking  would  be  endangered  by  the 
insertion  of  a  clause  of  this  nature  in  the  draft. 

Mr.  Asser  recalls  that  the  reporter,  Mr.  Descamps,  has  asserted  that  the 
Government  which  appoints  an  arbitrator  could  have  an  understanding  with  him 
as  to  the  selection  of  an  umpire.  Mr.  Asser  thinks  that  in  following  such  a 
course  the  Governments  will  be  exercising  a  formal  right. 

It  might  be  concluded  from  Mr.  Descamps'  address  that  this  should  not  be 
entirely  the  case,  but  the  delegate  of  the  Netherlands,  on  the  contrary,  is  of  Baron 
Bildt's  opinion.  From  the  point  of  view  of  legal  interpretation,  a  Government 
does  nothing  reprehensible  when  it  endeavors  to  exert  its  influence  in  the  selection 
of  an  umpire. 

It  seems  to  him  that  the  delegate  of  Sweden  and  Norway  has  already  indicated 
the  distinction  to  be  drawn.  In  effect,  to  show  that  the  Governments  are  not 
detracting  from  the  independence  of  the  arbitrators,  two  phases  must  be  distin- 
guished. First,  while  the  tribunal  is  being  constituted,  they  are  the  agents  of  the 
Government,  but  as  soon  as  the  tribunal  has  been  constituted,  the  arbitrator  must 
lay  aside  his  character  as  agent.  He  then  becomes  merely  an  independent  judge, 
whose  duty  it  is  to  be  guided  by  the  law,  without  allowing  his  conduct  to  be  influ- 
enced by  the  Government  that  appointed  him. 

He  therefore  thinks  it  advisable  to  make  express  mention  of  this  principle. 

Mr.  Hells  says  that  he  is  entirely  in  accord  with  the  ideas  expressed  by  Mr. 
Asser.  It  seems  to  him  necessary  to  set  forth  the  fact  that  the  basis  of  arbitra- 
tion is  the  absolute  agreement  of  the  two  parties  as  regards  the  selection  of  the 
arbitrators  and  the  umpire.  It  is  therefore  important  to  allow  no  doubt  to  sub- 
sist as  to  the  principle  that  the  two  litigants  must  be  entirely  satisfied  with  the 
choice  of  the  members  of  the  tribunal. 

But  express  mention  of  the  right  of  refusal  would  create  great  dangers  and 
complications. 

Assuredly  the  first  duty  of  the  arbitrators  is  to  elect  an  umpire,  and  we  wish 

to  emphasize  the  fact  that  they  must  perform  this  duty  to  the  satisfaction  of 

[52]  their  Governments,  if  we  say  that  the  machinery  of  arbitration  does  not 

begin  to  move  until  after  notification  that  the  tribunal  has  been  completed, 

including  the  appointment  of  the  umpire. 

Thus  the  two  Powers  will  have  sufficient  guaranties,  for  if  any  one  of  the 


656  THIRD  COMMISSION 

arbitrators  should  not  be  acceptable  to  them,  they  would  only  need  to  refrain  from 
notification. 

It  would  be  regrettable  to  emphasize  the  precaution. 

Mr.  Martens  recalls  that  Mr.  Asser  said  that  the  arbitrators,  once  appointed, 
must  lay  aside  their  character  of  agents  of  their  Governments.  Consider  the  case 
of  two  arbitrators  who  are  appointed  by  virtue  of  the  compromis  concluded  by 
their  Government,  the  situation  of  each  group  of  arbitrators  is  identical.  Each 
group  is  therefore  appointed  by  its  Government ;  it  is  not  merely  in  accord  with  it. 

The  Government,  in  appointing  them,  has  shown  them  the  greatest  mark  of 
confidence. 

It  is  then  the  task  of  these  four  persons  to  choose  the  umpire.  It  is  not  to 
be  supposed  that  these  arbitrators,  who  enjoy  the  full  confidence  of  their  Govern- 
ments, will  choose  an  umpire  who  is  not  worthy  of  this  honor,  and  that  they  will 
make  their  selection  without  the  full  approval  of  their  Governments.  The  con- 
fidence reposed  in  the  arbitrators  naturally  extends  to  the  use  they  make  of  their 
right  to  appoint  the  umpire.  It  is  absolutely  necessary  that  the  umpire  be  re- 
garded by  his  colleagues  as  a  man  of  the  greatest  authority.  It  is  for  this  reason 
that  the  choice  should  be  free  and  not  forced,  for  if  one  group  of  arbitrators  felt 
that  the  Government  of  another  group  insisted  upon  the  selection  of  a  specific 
person,  it  would  oppose  the  selection  for  this  very  reason. 

It  is  therefore  useless  to  insert  a  special  provision  on  this  point.  There  will 
always  be  cooperation  of  the  Governments. 

Baron  Bildt  officially  acknowledges  the  declarations  of  Messrs.  Asser  and 
HoLLS  and  accepts  their  interpretation,  which  he  desires  to  have  set  forth  in  the 
minutes.  He  will  therefore  not  insist  upon  the  insertion  of  a  special  provision  of 
this  kind.  He  desires,  however,  to  have  the  statement  appear  that,  in  his  opin- 
ion, approval  by  the  Governments  of  the  appointment  of  the  umpire  can  only 
increase  his  prestige.  The  nascent  institution  of  arbitration  cannot  be  sur- 
rounded with  too  many  guaranties. 

Chevalier  Descamps  observes  that  the  interpretation  in  question  is  not  that 
of  the  committee  of  examination. 

The  President  says  that  it  will  be  stated  in  the  minutes  that  Baron  Bildt 
officially  acknowledges  the  interpretation  of  Messrs.  Asser  and  Holls. 

His  Excellency  Sir  Julian  Pauncefote  would  like  to  know  whether  diplo- 
matic privileges  will  be  granted  to  the  members  of  the  Court  of  Arbitration  also 
by  the  countries  which  they  must  traverse  to  reach  their  destination. 

The  Reporter  and  the  President  explain  that  this  question  should  not  be 
settled  by  the  draft  Convention.  It  will  be  for  the  Governments  to  decide 
whether  they  will  apply  to  the  members  of  the  Court  the  same  rules  of  courtesy 
which  it  is  customary  to  apply  to  diplomats  to  whom,  for  the  rest,  they  will  be 
assimilated. 

Mr.  Lammasch  says  that  the  members  of  the  tribunal  cannot  be  placed  in  a 
more  favored  position  than  diplomats.  The  latter  do  not  enjoy  exterritoriality 
except  in  the  country  to  which  they  are  accredited. 

Article  24  is  adopted  in  the  following  form : 

When  the  signatory  Powers  wish  to  have  recourse  to  the  Permanent  Court  for  the 
settlement  of  a  difference  that  has  arisen  between  them,  the  arbitrators  called  upon  to  form 
the  tribunal  competent  to  decide  this  difference  must  be  chosen  from  the  general  list  of  mem- 
bers of  the  Court. 


SEVENTH  MEETING,  JULY  20.  1899  657 

Failing  the  composition  of  the  arbitration  tribunal  by  direct  agreement  of  the  parties, 
the  following  course  shall  be  pursued : 

Each  party  appoints  two  arbitrators,  and  these  together  choose  an  umpire. 

If  the  votes  are  equally  divided,  the  choice  of  the  umpire  is  entrusted  to  a  third  Power, 
selected  by  the  parties  by  common  accord. 

If  the  agreement  is  not  arrived  at  on  this  subject,  each  party  selects  a  different  Power, 
and  the  choice  of  the  umpire  is  made  in  concert  by  the  Powers  thus  selected. 

The  tribunal  being  thus  composed,  the  parties  notify  to  the  Bureau  their  determination 
to  have  recourse  to  the  Court  and  the  names  of  the  arbitrators. 

The  tribunal  of  arbitration  assembles  on  the  date  fixed  by  the  parties. 
[5v3]    The  members  of  the  Court,  in  the  performance  of  their  duties  and  out  of  their  own 
country,  enjoy  diplomatic  privileges  and  immunities. 

Article  25  is  read : 

The  Court  sits  ordinarily  at  The  Hague. 

It  has  the  option  of  sitting  elsewhere  with  the  assent  of  the  parties. 

This  article  is  adopted. 
Article  26  is  read : 

The  International  Bureau  at  The  Hague  is  authorized  to  place  its  premises  at  the  dis- 
posal of  the  signatory  Powers  for  the  use  of  any  special  board  of  arbitration. 

Even  non-signatory  Powers  may  have  recourse  to  the  jurisdiction  of  the  Court  within 
the  conditions  laid  down  in  the  present  Convention. 

Chevalier  Descamps  has  submitted  an  amendment  to  this  article,  making  the 
second  paragraph  read  as  follows : 

The  International  Court  may  be  called  upon  to  decide  a  dispute  even 
between  non-signatory  Powers,  or  between  a  signatory  and  a  non-signatory 
Power,  if  they  have  concluded  an  arbitration  convention  or  a  compromis 
setting  forth  the  intention  of  both  parties  to  have  recourse  to  this  Court. 

Chevalier  Descamps  states  that  the  object  of  this  amendment  is  to  define 
the  position  of  non-signatory  Powers  who  may  desire  to  have  access  to  the  Arbi- 
tration Court.     The  committee  of  examination  deemed  it  wise  to  adopt  it. 

Mr.  Renault  says  that  it  has  been  pointed  out  to  him  that  his  amendment 
does  not  settle  the  question  whether  the  procedure  thus  set  in  motion  should  be 
gratuitous  or  remunerated.  He  thinks  that  it  might  be  indicated  in  the  minutes 
that  it  is  the  Commission's  intention  to  leave  the  permanent  councils  free  to  fix 
such  tariffs  as  they  deem  proper. 

His  Excellency  Count  Nigra  is  of  the  opinion  that  the  door  of  the  arbitra- 
tion Court  should  be  left  as  wide  open  as  possible.  He  is  therefore  opposed  to 
the  idea  of  tariffs. 

Article  26  is  adopted  with  Mr.  Renault's  amendment. 

Article  27  is  read : 

The  signatory  Powers  consider  it  their  duty,  if  a  serious  dispute  threatens  to  break 
out  between  two  or  more  of  them,  to  remind  these  latter  that  the  Permanent  Court  is  open 
to  them. 

Consequently,  they  declare  that  the  fact  of  one  or  more  of  them  reminding  the  parties 
at  variance  of  the  provisions  of  the  present  Convention,  and  the  advice  given  to  them,  in 
the  highest  interests  of  peace,  to  have  recourse  to  the  Permanent  Court,  can  only  be  regarded 
as  in  the  nature  of  good  offices. 


658  THIRD  COMMISSION 

Mr.  Beldiman  states  that  his  Government  stopped  at  the  principle  that  arbi- 
tration is  optional.  He  is  therefore  obliged  to  make  reservations  wherever  it  is  a 
question  of  obligatory  arbitration  in  the  proposed  provisions.  He  suggests  that 
in  Article  27  the  words  "  consider  it  their  duty  "  be  replaced  by  the  words  "  deem 
it  advisable,"  which  relieve  the  provision  of  its  imperative  character. 

Baron  d'Estournelles  replies  that  a  reading  of  the  minutes  of  the  committee 
of  examination  —  particularly  the  observations  made  on  July  3  last  by  Mr. 
Bourgeois  and  himself  in  the  name  of  the  French  delegation  —  dissipates  any 
misunderstanding  with  regard  to  the  interpretation  which  Article  27  admits  of. 
We  have  not  intended  to  impose  any  obligation  on  the  parties ;  they  remain  en- 
tirely free.  We  have  imposed  a  duty  upon  the  signatory  Powers,  which  is  a  very 
different  thing. 

Why  did  the  committee  come  to  a  unanimous  decision  on  this  point  ? 
For  several  reasons,  which  I  shall  briefly  recall:  We  wished  to  anticipate 
the  bitter  disappointments  which  await  us  if  we  create  a  stillborn  work ;  we  fore- 
saw that  in  the  majority  of  cases  the  Powers  in  dispute,  especially  the  weaker 
ones,  will  not  dare  to  have  recourse  to  an  arbitration  tribunal  and  will  be  deterred 
by  susceptibilities  that  are  usually  insurmountable.  We  therefore  did  not  lose 
sight  of  the  interests  of  the  weaker  States,  but  on  the  contrary  we  opened  wide 
to  them  the  doors  of  an  institution  which  protects  them  and  by  which  they  will, 
in  the  very  nature  of  things,  be  the  first  to  profit,  as  was  so  eloquently  said  by 
our  President  yesterday. 

Moreover,  the  committee,  with  a  deep  sense  of  its  responsibility,  wished  to 
give  the  act  we  are  preparing  its  full  scope  and  all  its  high  moral  signifi- 
J54]  cance  by  proclaiming  that  the  States  have  not  only  rights,  but  duties.     Are 
we  going  back  on  such  a  declaration  ?     No,  it  is  not  to  be  blotted  out. 
It  was  objected  the  day  before  yesterday  that  realities  should  not  be  sacri- 
ficed to  theories,  nor  the  present  to  the  future,  and  that  the  necessities  of  politics 
should  be  taken  into  account,  freedom  of  action  reserved  to  the  Governments,  and 
their  interests  safeguarded. 

Those  are  things  which  we  have  not  lost  sight  of ;  but  we  have  also  taken 
into  consideration  the  fact  that  the  foremost  interest  of  Governments  is  to  keep 
the  public  confidence.  We  are  here,  gentlemen,  to  undertake  a  work  of  pacifi- 
cation ;  but  we  are  also  all  animated  by  the  desire  to  strengthen  governmental 
authority.  Take  care  that  you  do  not,  by  excess  of  circumspection,  undermine 
and  discredit  this  authority  instead  of  doing  it  a  service.  Yes,  Governments  need 
public  confidence,  under  present  circumstances  more  than  ever  before;  but 
Governments  —  let  us  be  under  no  illusions  —  will  succeed  in  keeping  or  in  win- 
ning this  confidence  only  on  the  condition,  not  of  claiming  new  rights,  but  of 
recognizing,  accepting,  and  fulfilling  their  duties  toward  themselves,  toward  their 
nationals,  toward  mankind.     (Applause.) 

Mr.  Veljkovitch  says  that  Article  27  has  been  represented  as  having  been 
inspired  by  a  sentiment  of  benevolent  solicitude  on  the  part  of  the  great  Powers 
for  their  weaker  sisters.  If  it  is  true  that  the  great  Powers  are  animated  by  this 
sentiment,  nothing  will  prevent  their  manifesting  the  fact  outside  of  the  Conven- 
tion.    Therefore,  if  Article  27  has  no  other  purport,  it  would  be  useless. 

Again,  it  has  been  said  that  the  provision  with  which  we  are  concerned  would 
give  the  Convention  a  high  moral  import.  The  best  way  of  ensuring  the  Con- 
vention such  an  import  would  have  been  for  the  great  Powers  to  admit  the  prin- 
ciple of  obligatory  arbitration,  which  is  the  most  striking  expression  of  the  con- 


SEVENTH  MEETING,  JULY  20,  1899  659 

ception  of  the  equality  of  States  and  of  the  desire  to  see  all  disputes  of  a  legal 
nature  settled  by  peaceful  means.  The  delegation  of  Serbia  would  not  have  made 
any  objection  to  the  principle  of  obligatory  arbitration. 

Finally,  Article  27  appears  to  duplicate  provisions  already  voted.  Article  1 
states  that  the  Powers  shall  use  their  best  efforts  to  bring  about  the  peaceful 
settlement  of  international  differences.  It  would  seem  as  if  this  engagement 
already  contains  the  obligation  which  Article  27  imposes  upon  the  Powers  in  the 
matter  of  arbitration. 

The  efforts  which  the  Powers  agree  to  use  will  be  transformed  into  deeds, 
and  the  first  of  these  deeds  will  be  to  advise  recourse  to  the  arbitration  Court. 

Article  27  likewise  duplicates  Section  2  pertaining  to  good  offices  and  media- 
tion. The  performance  of  good  offices  is  not  required  to  assume  any  specified 
form,  and  to  remind  Powers  at  variance  that  they  may  have  recourse  to  arbitra- 
tion is  one  form  of  good  offices. 

Therefore  all  the  situations  provided  for  in  Article  27  have  already  been 
covered  by  the  preceding  provisions.  Is  it  therefore  advisable  to  insist  so 
strongly  upon  a  stipulation  which  relates  to  a  matter  so  delicate  as  to  call  forth 
reservations  at  every  turn? 

However  that  may  be,  if  the  Commission  decides  to  adopt  Article  27,  the 
delegation  of  Serbia  will  be  compelled  to  formulate  express  reservations  with 
respect  to  that  provision. 

His  Excellency  Count  Nigra  asks  permission  to  make  an  observation.  He 
has  heard  mention  made  of  great  and  of  small  Powers.  Now  there  are  neither 
great  nor  small  Powers  here,  but  the  representatives  of  Governments  which  are 
absolutely  equal,  who  discuss  questions  in  an  independent  manner  and  who  have 
assembled  for  the  sole  purpose  of  executing  a  work  useful  to  the  cause  of  peace. 

Dr.  Zorn  delivers  the  following  address,  of  which  Mr.  Asser  makes  a  run- 
ning translation : 

My  most  honored  colleague,  the  delegate  of  Serbia,  has  asked  why  we  have 
not  introduced  obligatory  arbitration  into  this  project.  I  deem  it  my  duty  to 
answer  this  question. 

There  is  little  doubt  that  there  was  a  strong  current  in  favor  of  obligatory 
arbitration,  in  the  committee  of  examination;  but  I  must  state  that  the  German 
Government  would  not  have  been  able  to  adopt  a  project  which  would  have 
made  arbitration  obligatory. 

I  recognize  with  gratitude  that  the  members  of  the  committee  of  examina- 
tion weighed  the  serious  objections  of  my  Government,  in  the  noble  spirit  of 
united  efforts  in  a  common  cause,  which  animated  them  from  the  outset  in  their 
work.     The  reason  for  these  objections  is  as  follows: 

It  is  true  that  there  is  a  whole  series  of  special  cases  of  arbitration  and  that 
arbitration  is  no  longer  a  thing  unknown.  But  the  experiments  thus  far  made 
in  this  field  are  not  of  a  kind  to  warrant  the  contracting  of  an  engagement  at  the 
present  time  with  regard  to  obligatory  arbitration. 

To  proceed  in  this  important  matter  without  sufficient  experience  would  seem 
to  be  a  dangerous  thing  and  might  lead  to  discord  rather  than  to  harmony.     I  be- 
lieve that  the  German  Government  is  not  alone  in  regarding  the  question  in 
[55]   this  light.     It  is  true  that  the  committee  did  not  vote  on  this  question,  but 
I  have  no  doubt  that  our  serious  objections  are  shared  by  others  within 
and  without  the  committee  of  examination,  and  by  other  States. 


660  THIRD  COMMISSION 

Under  these  circumstances,  the  committee  decided  to  present  the  project  to 
the  Commission  and  to  the  Conference  on  the  basis  of  optional  arbitration. 

On  the  other  hand,  the  German  Government  has  been  impressed  with  the 
behef  —  knowing  that  it  was  in  accord  with  all  the  Governments  on  this  point  — 
that  every  endeavor  tending  to  preserve  peace  and  good  relations  between  nations 
deserves  most  earnest  attention.  The  wishes  of  the  German  Government  in  this 
respect  are  in  harmony  with  those  of  the  other  Governments  represented  at  this 
Conference. 

Hence  my  Government  has  up  to  the  present  moment  made  no  objections  to 
Article  27,  although  perhaps  the  expression  of  duty  would  appear  to  go  a  little 
too  far.  But  there  would  seem  to  be  no  insurmountable  difficulties  in  the  way 
of  expressing  and  emphasizing  this  moral  duty.  That  is  why  I  also  have  been 
able  to  join,  and  have  willingly  joined  in  the  views  so  eloquently  set  forth  by  our 
most  honorable  President,  Mr.  Leon  Bourgeois,  and  the  other  most  honorable 
member  of  the  French  delegation.  Such  are  the  reasons  which  led  us  to  include 
Article  27  in  the  project. 

I  admit  that  Article  27  is  in  a  sense  a  repetition  of  other  provisions  contained 
in  the  project.  The  same  ideas  are  expressed  in  other  places.  But  that  is  not  a 
defect.  The  object  of  our  task  is  to  create  a  soHd  basis  for  the  widest  possible 
use  of  peaceful  means  in  putting  an  end  to  international  differences.  We  must 
not  clash  with  each  other  because  certain  things  in  Article  27  are  repetitions. 

Therefore,  I  do  not  regard  the  apprehension  expressed  with  respect  to  Article 
27  as  warranted.  We  adopt  it  as  a  reiterated  recommendation  that  all  peaceful 
means,  in  so  far  as  circumstances  permit,  should  be  tried  to  put  an  end  to  dis- 
putes. That  is  our  opinion,  that  is  the  sense  in  which  we  interpreted  Article  27 
in  the  committee,  and  that  is  also,  I  presume,  the  opinion  of  the  Governments 
here  represented.  I  believe  that  under  these  circumstances  my  honorable  col- 
league from  Belgrade  and  the  other  representatives  of  the  Balkan  Powers  will 
also  be  able  to  declare  themselves  in  favor  of  this  article. 

If  the  article  had  a  formal  legal  content,  it  would  have  been  unacceptable  to 
me  too.  In  that  case  I  should  have  fully  shared  the  objections  of  the  representa- 
tives of  the  Balkan  States.  But  it  has  no  formal  legal  content ;  it  contains  merely 
a  recommendation  of  a  purely  moral  character.     (Applause.) 

Mr.  Veljkovitch  replies  that  it  was  not  his  intention  to  raise  the  question  of 
obligatory  arbitration,  which  is  not  on  the  Commission's  order  of  business.  Con- 
sequently he  does  not  feel  that  it  is  proper  for  him  to  enter  upon  a  discussion  of  the 
substance  of  the  question ;  otherwise  he  would  have  been  glad  to  undertake  such 
a  discussion,  if  only  to  call  forth  further  interesting  observations  from  the  honor- 
able gentleman  who  has  just  spoken  and  whose  vigorous  eloquence  and  high  sci- 
entific standing  he  greatly  esteems.  If  he  has  mentioned  obligatory  arbitration,  it 
was  solely  for  the  purpose  of  showing  things  up  in  their  true  light  and  of  demon- 
strating that  Article  27  could  not  be  regarded  —  as  it  had  been  attempted  to  rep- 
resent it  —  as  the  great  citadel  of  peace,  since  alongside  of  it  there  are  institutions 
of  incomparably  greater  scope  from  the  standpoint  of  peaceful  relations  and  the 
maintenance  of  peace  among  States,  which  not  only  have  not  been  included  in  the 
Convention,  but  which  have  been  stricken  out  of  the  draft  where  they  had  origin- 
ally appeared. 

The  fact  that  he  has  declared  himself  in  favor  of  obligatory  arbitration  in 
cases  of  a  legal  nature  is  proof  enough  that  what  he  objects  to  in  Article  27 


SEVENTH  MEETING,  JULY  20,  1899  661 

is  not  the  instrumentality  of  peace  and  concord  among  States ;  the  fault  he  finds 
with  the  provisions  of  this  article  is  that  they  are  a  sort  of  invitation  to  the 
great  Powers  to  adopt  measures  which  will  wound  the  legitimate  self-respect  and 
dignity  of  the  smaller  States.  For  it  is  futile  to  proclaim  that  there  are  no  great 
and  no  small  Powers ;  that  does  not  change  the  reality  of  things,  and  reality  will 
never  admit  of  giving  Article  27  the  character  of  reciprocity  by  virtue  of  which 
small  Powers  could,  without  overstepping  the  bounds  of  international  propriety, 
invoke  the  provisions  of  this  article  against  great  Powers. 

In  any  event  the  mitigating  explanations  that  have  been  presented  with 
regard  to  Article  27  square  better  with  Mr.  Beldiman's  amendment,  which 
substitutes  the  words  "  deem  advisable  "  for  the  word  "  duty,"  than  with  the 
present  reading,  where  the  obligation  of  third  Powers  to  intervene  is  clearly  and 
formally  expressed  and  might  therefore  the  more  easily  give  rise  to  abuses  in 
practice. 

Mr.  Odier  speaks  as  follows: 

Although  Count  Nigra  has  recalled  that  there  are  here  neither  great  nor 
small  Powers,  we  must  nevertheless  admit  that  States  with  limited  population 
and  territory  regard  questions  of  intervention  in  a  different  light.  I  can 
[56]  therefore  understand  to  a  certain  extent  the  apprehensions  of  the  delegate 
of  Serbia,  and  I  can  understand  them  the  better  because  I  also  belong 
to  a  country  with  narrow  boundaries  and  an  inconsiderable  number  of  in- 
habitants. I  should  nevertheless  like  to  point  out  to  Mr.  Veljkovitch  a  new 
and  important  fact.  We  have  endeavored  to  open  a  new  era  in  international 
relations.  Up  to  the  present  time  war  has  been  left  to  the  pleasure  of  the 
nations  at  variance,  and  neutral  Powers  did  not  do  all  they  could  to  prevent  it. 
Now  we  must  remember  that  this  era  imposes  new  duties.  Neutrals  have  duties 
to  fulfill.  They  must  no  longer  be  satisfied  with  remaining  silent,  more  or  less 
disapprovingly ;  they  must  no  longer  permit  two  Powers  to  appeal  to  arms  until 
every  effort  has  been  made  to  prevent  such  a  calamity. 

One  of  our  colleagues  endeavored  to  characterize  the  role  of  neutrals  at  such 
a  juncture  and  hit  upon  the  happy  word  "  pacigerent."  This  term  will  be  sanc- 
tioned by  the  Hague  Conference.  That  is  why  I  have  supported  the  proposal 
of  the  French  delegation,  considering  it  as  the  sanction  of  a  duty  on  the  part  of 
neutrals.     (Applause.) 

Mr.  Hells  makes  the  following  remarks,  which  are  translated  by  Baron 
d'Estournelles  : 

I  should  like  to  say  a  few  words  in  favor  of  Article  27  and  to  explain  why 
I  am  so  completely  in  harmony  with  the  advocates  of  this  article. 

The  delegate  of  Serbia  has  recalled,  in  this  connection,  the  question  of 
obligatory  arbitration,  saying  that  the  Powers  had  stopped  halfway  and  had 
been  unwilling  to  proceed  to  the  end  of  the  road.  Allow  me  to  state  that  in  the 
opinion  of  the  committee  there  was  no  connection  between  obligatory  arbitra- 
tion and  the  notion  of  duty. 

I  desire  to  lay  stress  upon  the  following  fact,  which  is  the  cause  of  my 
personal  conviction:  the  absence  of  Article  27  would  have  been  fatal  to  the 
Convention,  which  without  this  article  would  be  in  danger  of  not  being  utilized 
and  of  becoming  a  dead  letter.  It  was  necessary  to  express  the  idea  of  the 
moral  duty  of  the  States,  not  only  toward  themselves,  but  toward  mankind. 
This  idea,  this  simple  word  will  inaugurate  a  new  era,  in  which  the  peoples  will 


662  THIRD  COMMISSION 

recognize  their  bonds  of  solidarity  and  the  imperative  obligation  of  interesting 
themselves  not  only  in  their  own  peace,  but  in  that  of  their  neighbors. 

Moreover,  this  article  does  not  imply  an  obligation  in  the  juristic  sense  of 
the  word,  but  an  obligation  of  a  moral  nature.  It  is  in  this  sense  that  the  clear- 
cut  adhesion  of  the  American  delegation,  of  the  entire  committee  of  examination 
to  the  proposal  of  the  two  French  delegates  was  brought  about.  As  for  me, 
I  rejoice  that  such  an  idea  was  formulated,  for  I  consider  it  the  necessary 
culmination  of  the  task  we  have  in  hand.     (Applause.) 

Mr.  Veljkovitch  replies  that  the  declarations  and  observations  which  have 
been  made  do  not  seem  to  him  of  a  nature  to  attenuate  the  objections  which  he 
has  presented.  He  feels  that  he  must  maintain  his  point  of  view  and  desires 
to  set  forth  two  main  points  in  connection  with  the  interpretation  of  Article  27. 
In  the  first  place,  he  understands  that  by  the  expression  "  serious  dispute  " 
{coniiit  aigii)  appearing  in  this  article  is  meant  the  kind  of  serious  dispute  (con- 
flit  grave)  referred  to  in  Article  2  as  capable  of  bringing  on  war.  It  is  there- 
fore only  in  absolutely  exceptional  cases,  where  peace  is  endangered,  that  the 
provisions  of  Article  27  may  be  applied. 

In  the  second  place,  the  intervention  contemplated  by  this  article  may  only 
be  considered  an  act  of  good  offices  along  the  same  Hnes  as  the  intervention  cov- 
ered by  Section  2.  The  explanations  which  have  been  made  with  respect  to 
the  various  articles  of  this  section,  therefore,  also  apply  to  Article  27,  as  well 
as  the  general  reservation  which  the  delegation  of  Serbia  felt  it  necessary  to  make 
regarding  Section  2. 

In  this  sense  it  has  been  specifically  decided ;  that  the  good  offices  mentioned 
in  Article  27  may  be  performed  only  with  the  extreme  discretion  and  caution 
required  when  taking  such  a  step ;  that  these  good  offices  may  not  be  performed 
in  such  form  and  under  such  circumstances  as  might  give  them  the  appearance 
of  intervention  in  the  domestic  affairs  of  a  State ;  and,  finally,  that  the  refusal 
of  a  Power  to  follow  the  course  pointed  out  to  it  may  never  be  regarded  by 
the  other  as  an  unfriendly  act. 

Subject  to  this  interpretative  declaration,  the  delegation  of  Serbia  would 
be  able  to  accept  Article  27. 

The  President  takes  the  floor  and  speaks  as  follows : 

Gentlemen  :  Before  we  pass  to  a  vote  on  his  proposal,  I  ask  the  delegate  of 
Serbia  to  be  permitted  to  make  a  final  appeal  to  him.  I  do  so  both  in  the  name 
of  the  French  delegation,  which  fathered  Article  27,  and  as  president  of  the 
Commission. 

Since  the  opening  of  the  Conference,  we  have  succeeded  on  more  than 
one  occasion  in  joining  hands  and  in  reaching  a  unanimous  point  of  view  on 
questions  with  regard  to  which  we  appeared  at  first  to  be  divided.  It  would 
be  a  notable  achievement,  the  moral  importance  of  which  is,  in  my  opinion, 
beyond  expression,  if  we  should  succeed  in  showing  the  world  that  we  are  also 
unanimous  as  regards  Article  27,  which  marks  one  of  the  essential  points  of 
the  institution  of  arbitration. 

When  I  examine  the  ideas  which  have  caused  Mr.  Veljkovitch  to  make 
reservations  with  regard  to  Article  27,  I  can  say  that  none  of  these  ideas 
[57]   can  call  forth,  and  none  of  them  has  called  forth,  any  objection.     All  the 
speeches  you  have  heard,  all  the  declarations  which  have  been  made  concern- 
ing the  meaning  and  the  scope  of  this  article  are  at  one  in  holding  that  it 


SEVENTH  MEETING,  JULY  20,  1899  663 

should  be  adopted,  and  I  desire  expressly  to  confirm  what  has  been  said  with  such 
force  by  all  the  members  of  the  committee  of  examination. 

The  disputes  contemplated  by  Article  27  are  indeed  only  those  which  might 
imperil  peace.  It  is  only  with  respect  to  such  disputes  that  we  regard  as  proper 
the  friendly  appeal  of  the  signatory  Powers  to  the  parties  at  variance  to  have 
recourse  to  arbitration. 

As  for  the  apprehension  expressed  by  the  delegate  of  Serbia  that  a  strong 
Power  may  make  use  of  Article  27  for  an  attempt  at  unwarranted  intervention 
in  the  affairs  of  a  weaker  Power,  I  shall  merely  say  that,  if  a  Power  were  to 
act  in  such  a  way,  far  from  having  the  right  to  invoke  Article  27,  it  would,  in 
my  opinion,  be  acting  absolutely  contrary  to  its  purpose  and  spirit.  As  for 
us,  if  this  article  could  have  such  a  result,  not  only  would  we  not  have  fathered 
it,  but  we  would  have  energetically  opposed  it  and  refused  it  our  vote,  if  it  had 
been  submitted  by  another  delegation. 

Mr.  Veljkovitch  has  asked  of  what  practical  use  is  Article  27.  I  shall 
not  repeat  the  reply  that  was  made  to  him.  It  was  shown  that  it  is  necessary 
to  recall  as  regards  arbitration  the  principles  which  appeared  in  the  first  article 
of  the  Convention,  by  which  the  signatory  Powers  undertook  to  use  their  best 
efforts  to  bring  about  a  peaceful  settlement  of  international  disputes.  These 
principles  have  been  applied  in  determining  the  character  of  good  offices  which 
offers  of  mediation  have,  in  our  opinion.  It  was  necessary  and  logical  to  say 
as  much  for  the  advice  to  have  recourse  to  the  Permanent  Court  of  Arbitration 
and  to  state  the  duty  of  the  Powers  to  make  a  sincere  effort  in  this  as  in  other 
forms  of  settlement  for  the  maintenance  of  peace  among  the  nations. 

But  it  is  not  merely  a  question  of  the  practical  utility  of  this  provision. 
Be  assured,  gentlemen,  that  what  persuades  us  to  defend  it  so  energetically  is 
that  it  seems  to  us  to  have  a  moral  significance,  the  importance  of  which  will 
be  better  and  better  understood  as  time  goes  on  and  after  our  labors  are  ended. 

Certain  persons,  gentlemen,  who  do  not  realize  the  power  of  an  idea,  would 
have  us  beheve  that  what  we  have  done  here  is  a  thing  of  little  consequence. 
I  am  convinced,  on  the  contrary,  that  when  we  have  left  this  Conference,  when 
we  are  no  longer  burdened  with  a  legitimate  concern  for  the  special  interests 
of  each  nation,  which  we  have  been  forced  to  take  into  account,  we  ourselves 
will  be  better  able  to  judge  of  the  importance  of  our  work,  and  the  farther  we 
proceed  in  the  corridors  of  time,  the  more  clearly  will  this  importance  stand 
revealed.  The  moral  significance  of  the  provisions  of  Article  27  lies  wholly 
in  the  fact  that  a  common  duty  as  regards  the  maintenance  of  peace  among 
men  is  recognized  and  asserted  among  nations.  Do  you  believe  it  to  be  a  thing 
of  little  consequence  that  in  this  Conference  —  that  is  to  say,  not  in  a  meeting 
of  theorists  and  philosophers  engaged  in  free  discussion  merely  on  their  own 
responsibility,  but  in  an  assembly  in  which  the  Governments  of  nearly  all  the 
civilized  nations  are  represented  —  the  existence  of  this  international  duty  has 
been  proclaimed,  and  that  the  conception  of  this  duty,  from  now  on  imbedded 
for  all  time  in  the  conscience  of  the  peoples  of  the  world,  will  make  itself  felt 
hereafter  in  the  acts  of  Governments  and  of  nations?  If  my  colleagues  who  have 
been  opposed  to  this  article  will  permit  me  to  say  so,  I  feel  that  their  eyes  are 
not  turned  in  the  direction  in  which  they  should  look.  They  have  seemed  to 
be  concerned  with  the  conflicting  interests  of  the  great  and  the  small  Powers 
in  this  matter  of  arbitration.  I  shall  repeat  what  has  been  said  by  Count  Nigra  : 
there  are  neither  great  nor  small  Powers  here;  all  are  equal  before  the  work 


664  THIRD  COMMISSION 

to  be  accomplished.  But  if  this  work  is  to  be  more  advantageous  to  one  than 
to  another,  would  not  the  weaker  nations  surely  profit  by  it  the  more?  Yes- 
terday in  the  committee  of  examination  I  said  to  our  colleagues  on  the  opposite 
side:  Every  time  in  the  history  of  the  world  that  a  tribunal  has  been  insti- 
tuted and  that  a  thoughtful  and  impartial  decision  has  thus  been  enabled  to 
rise  above  the  clash  of  interests  and  passions,  has  it  not  been  another  guaranty 
to  the  weak  against  the  abuses  of  force? 

It  will  be  the  same,  gentlemen,  between  nations  as  between  men.  Inter- 
national institutions,  like  this  one,  will  be  the  guaranty  of  the  weak  against  the 
strong.  In  the  clashes  of  force,  when  it  is  a  question  of  soldiers  of  flesh  and 
steel,  there  are  great  and  small,  weak  and  strong.  When  it  is  a  question 
of  piling  up  swords  on  both  sides  of  the  scales,  one  side  can  be  heavier  and 
the  other  lighter.  But  when  it  is  a  question  of  weighing  rights,  there  is  no 
longer  any  inequality,  and  the  rights  of  the  smallest  and  weakest  weigh  just 
as  much  on  the  scales  as  the  rights  of  the  greatest. 

This  is  the  sentiment  which  has  inspired  our  work,  and  in  carrying  it  out 
we  have  had  the  weak  especially  in  mind.  May  they  understand  our  motives 
and  respond  to  our  hope  by  joining  in  the  efforts  we  are  making  to  govern 
the  future  of  mankind  in  ever-increasing  measure  by  the  principles  of  law. 
(Prolonged  applause.) 

Mr.  Veljkovitch  replies  that  he  is  glad  the  observations  which  he  pre- 
sented regarding  Article  27  have  given  the  Commission  the  opportunity  of  hear- 
ing so  eloquent  an  address.     He  hopes  that  the  construction  put  upon  this 
[58]  provision  by  the  President  will  be  faithfully  reproduced  in  the  minutes 
of  this  meeting.     It  has  made  the  principle  laid  down  acceptable,  and  the 
delegation  of  Serbia  is  happy  to  be  able  to  support  it  under  these  conditions. 

The  President  states  that  the  Commission  is  in  agreement  as  to  Article  27 
and  asks  whether  any  member  has  anything  further  to  say  on  this  article. 

Dr.  Stancioff  speaks  as  follows: 

If  it  is  admitted  that  it  is  a  duty  to  recall  the  existence  of  the  Permanent 
Court  —  it  will  always  be  a  benefit  —  the  method  to  be  followed  in  performing 
this  duty  should  also  be  indicated.  The  word  **  recall "  seems  to  me  too  weak 
alongside  of  "  duty." 

And  if  it  is  not  desired  to  involve  diplomacy  in  this  question,  through  what 
channel  should  steps  be  taken?  Through  the  Bureau  of  Permanent  Council 
mentioned  in  Article  28?  This  method  of  procedure  might  perhaps  be  too  long, 
for  the  country  which  deems  it  its  duty  to  bring  arbitration  to  the  attention  of 
the  Power  that  is  in  danger  of  conflict  will  be  obliged  first  to  address  itself  to 
the  Permanent  Council;  the  Council  will  have  to  call  together  five  members 
in  order  to  deliberate,  and  during  this  interval  the  conflict  may  break  out 
before  the  communication  is  transmitted. 

That  is  why  we  must  try  to  hit  upon  the  most  effectual  and  speedy  method 
of  tendering  good  offices,  if  we  wish  them  to  be  of  any  service. 

Mr.  Stancioff  is  informed  that  official  note  is  made  of  his  observation, 
and  Article  27  is  adopted. 

Article  28  is  read: 

A  Permanent  Administrative  Council,  composed  of  the  diplomatic  representatives  of 
the  signatory  Powers  accredited  to  The  Hague  and  of  the  Netherland  Minister  for  Foreign 
Affairs,  who  will  act  as  president,  shall  be  instituted  in  this  town  as  soon  as  possible  after 
the  ratification  of  the  present  act  by  at  least  nine  Powers. 


SEVENTH  MEETING,  JULY  20,  1899  665 

This  Council  will  be  charged  with  the  establishment  and  organization  of  the  Interna- 
tional Bureau,  which  will  be  under  its  direction  and  control. 

It  will  notify  to  the  Powers  the  constitution  of  the  Court  and  will  provide  for  its 
installation. 

It  will  settle  its  rules  of  procedure  and  all  other  necessary  regulations. 

It  will  decide  all  questions  of  administration  which  may  arise  with  regard  to  the  oper- 
ations of  the  Court. 

It  will  have  entire  control  over  the  appointment,  suspension  or  dismissal  of  the  officials 
and  employees  of  the  Bureau. 

It  will  fix  the  payments  and  salaries,  and  control  the  general  expenditure. 

At  meetings  duly  summoned  the  presence  of  five  members  is  sufficient  to  render  valid 
the  discussions  of  the  Council.    The  decisions  are  taken  by  a  majority  of  votes. 

The  Council  communicates  to  the  signatory  Powers  without  delay  the  regulations 
adopted  by  it.  It  addresses  to  them  an  annual  report  on  the  labors  of  the  Court,  the  work- 
ing of  the  administration,  and  the  expenditure. 

Chevalier  Descamps  says  that  this  article  has  undergone  several  modifica- 
tions. 

In  the  first  place,  in  order  to  meet  the  wishes  of  his  Excellency  Count  Nigra, 
the  number  of  Powers  who  must  have  ratified  the  Convention  before  the  Per- 
manent Council  may  be  constituted  was  raised  from  six  to  nine  (paragraph  1). 
In  the  second  place,  the  committee  complied  in  three  respects  with  the  desire 
expressed  by  his  Excellency  Count  Welsersheimb  : 

( 1 )  In  paragraph  1  the  word  *'  administrative  "  was  inserted  between  "  Per- 
manent "  and  "  Council." 

(2)  In  paragraph  5  the  words  "  of  administration "  were  inserted  after 
the  word  "  questions." 

(3)  Finally,  the  last  paragraph  was  made  to  assume  the  following  form: 
*'  The  Council  communicates  to  the  signatory  Powers  without  delay  the  regula- 
tions adopted  by  it.     It  addresses  to  them  an  annual  report,  etc." 

It  was,  however,  understood  that  this  communication  of  the  regulations 
does  not  have  the  effect  of  making  these  regulations  contingent  upon  the  ap- 
proval of  each  Power. 

His  Excellency  Count  Welsersheimb  states  that  he  is  satisfied  with  these 
modifications. 

Article  28  is  adopted. 

Article  29  is  read: 

The  expenses  of  the  Bureau  shall  be  borne  by  the  signatory  Powers  in  the  proportion 
fixed  for  the  International  Bureau  of  the  Universal  Postal  Union. 

This  article  is  adopted. 
[59]  The  Commission  passes  to  Chapter  III  (Aibitration  procedure). 
Article  29  bis  is  read : 

With  a  view  to  encouraging  the  development  of  arbitration,  the  signatory  Powers  have 
agreed  on  the  following  rules  which  shall  be  applicable  to  arbitration  procedure,  unless 
other  rules  have  been  agreed  on  by  the  parties. 

This  article  is  adopted. 
Article  30  is  read: 

The  Powers  which  have   recourse  to  arbitration  sign  a  special  act   (comprotnis) ,  in 


666  THIRD  COMMISSION 

which  are  clearly  defined  the  subject  of  the  dispute  and  the  extent  of  the  arbitrators'  powers. 
This  act  implies  an  engagement  of  the  parties  to  submit  in  good  faith  to  the  arbitral  award. 

This  article  is  adopted. 
Article  31  is  read: 

The  duties  of  arbitrator  may  be  conferred  on  one  arbitrator  alone  or  on  several  arbi- 
trators selected  by  the  parties  as  they  please,  or  chosen  by  them  from  the  members  of  the 
Permanent  Court  of  Arbitration  established  by  the  present  act. 

Failing  the  constitution  of  the  tribunal  by  direct  agreement  between  the  parties,  the 
following  course  shall  be  pursued : 

Each  party  appoints  two  arbitrators,  and  these  together  choose  an  umpire. 

If  the  votes  are  equally  divided  the  choice  of  the  umpire  is  entrusted  to  a  third  Power, 
selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects  a  different  Power, 
and  the  choice  of  the  umpire  is  made  in  concert  by  the  Powers  thus  selected. 

This  article  is  adopted,  with  the  reservation  of  Dr.  Stancioff's  observation, 
to  wit,  that  the  two  arbitrators  provided  for  in  paragraph  3  may  belong  to  the 
interested  country. 

Article  32  is  read: 

When  the  arbitrator  is  a  sovereign  or  the  chief  of  a  State,  the  arbitration  procedure 
is  settled  by  him. 

This  article  is  adopted. 
Article  33  is  read: 

The  umpire  is  ex  oiHcio  president  of  the  tribunal. 

When  the  tribunal  does  not  include  an  umpire,  it  appoints  its  own  president. 

Mr.  Papiniu  desires  to  call  the  Commission's  attention  to  a  situation  which 
it  seems  to  him  has  not  been  foreseen.  What  would  happen  if  an  even  number 
of  arbitrators  should  be  appointed  and  if,  in  the  absence  of  an  umpire,  there 
should  be  a  tie  vote  on  the  award? 

The  President  says  that  the  committee  did  not  consider  that  the  tribunal 
could  be  composed  of  an  even  number  of  arbitrators  without  the  Powers  seeing 
to  it  that  an  umpire  was  designated.  If  such  a  case  should  occur,  it  would  be 
like  stepping  wantonly  into  a  dispute,  and  such  an  hypothesis  does  not  seem 
to  be  reasonable. 

Chevalier  Descamps  says  that  in  laying  down  the  rules  for  the  appointment 
and  the  prerogatives  of  the  umpire,  the  difficulties  pointed  out  by  Mr.  Papiniu 
have  been  forestalled  to  a  certain  extent.  The  draft  Convention  cannot  go 
farther  than  that. 

If,  however,  it  should  happen  that  an  arbitration  tribunal  found  it  impossible 
to  reach  a  majority  decision,  and  if  it  is  not  desired  or  is  found  impossible  to 
appoint  an  umpire  to  break  the  deadlock,  it  will  be  for  the  Governments  con- 
cerned to  remedy  the  situation.  Mr.  Descamps  can  see  no  other  solution,  and 
he  cannot  consider  the  possibility  of  giving  any  one  of  the  arbitrators  a  pre- 
ponderant vote.  The  committee  is,  however,  disposed  to  examine  any  amend- 
ment that  Mr.  Papiniu  may  wish  to  formulate  in  writing. 

Mr.  Papiniu  replies  that  he  did  not  feel  called  upon  to  formulate  a  positive 
proposal;  he  merely  wished  to  point  out  a  possibility  which  he  thought  ought 


SEVENTH  MEETING,  JULY  20,  1899  667 

to   be   considered   and   which,   in   his   opinion,   may   present   itself   in   practice. 

He  leaves  it  to  the  eminent  jurists  who  are  members  of  the  Commission 
to  give  legal  form  to  the  idea  which  he  has  indicated. 

The  President  says  that  in  his  opinion  it  would  suffice  to  mention  in  the 

minutes  the  dangers  of  the  interesting  situation  pointed  out  by  Mr.  Papiniu, 

[60]   in   order  to   remove   the   likelihood   of   their   occurrence.     He   would   be 

very  grateful  to  the  delegate  of  Roumania  if  he  would  be  good  enough 

to  put  his  proposal  in  the  form  of  an  amendment. 

Mr.  Rolin  has  listened  with  interest  to  the  observations  which  have  just 
been  made  by  the  Minister  of  Roumania  with  regard  to  the  difficulties  that  may 
arise  in  the  matter  of  the  selection  of  the  president  of  the  tribunal  and  of  the 
deliberations  on  the  arbitral  award,  in  the  event  of  the  arbitration  tribunal's 
being  composed  of  an  even  number  of  arbitrators.  The  reporter's  reply,  point- 
ing out  the  only  possible  solutions  under  such  a  hypothesis,  has  likewise  de- 
served the  whole  attention  of  the  assembly.  But  Mr.  Rolin  deems  it  necessary  to 
point  to  the  additional  fact  that  the  difficulties  in  question  in  no  way  proceed 
from  any  deficiency  in  the  project  under  discussion.  Article  31  of  this  project 
provides  for  the  constitution  of  the  arbitration  tribunal,  which,  unless  there 
be  a  convention  to  the  contrary,  is  to  be  composed  of  five  members,  one  of  whom 
is  the  umpire. 

The  difficulty  can  therefore  occur  only  as  the  result  of  a  compromis  in 
derogation  of  the  rules  contained  in  the  project. 

The  Minister  of  Roumania  doubtless  has  no  intention  of  restricting  the 
right  of  parties  so  to  do.  We  are  agreed  that  they  should  be  allowed  entire 
freedom  to  conclude  such  a  compromis  as  they  may  see  fit.  To  his  mind,  the 
Conference  must  resign  itself  to  accept  the  consequences  of  the  parties'  free- 
dom of  action,  notably  the  consequences  that  are  likely  to  occur  if  there  is  an 
even  number  of  members  of  the  arbitration  tribunal.  Mr.  Rolin  considers, 
moreover,  that  the  present  exchange  of  views  will  be  of  service  in  calling  the 
attention  of  the  Governments  to  the  difficulties  that  may  come  up,  if  they  con- 
stitute a  tribunal  with  an  even  number  of  arbitrators,  in  derogation  of  the  rules 
laid  down  in  the  project. 

Mr.  Louis  Renault  says  that  he  considers  Mr.  Papiniu's  observation  both 
judicious  and  interesting,  as  it  may  well  happen  that  there  is  an  even  number 
of  judges  at  the  time  of  rendering  the  award.  In  his  opinion,  in  order  not  to 
disturb  the  arrangement  of  the  project  under  discussion,  it  would  suffice  if 
the  Commission's  report  should  mention  Mr.  Papiniu's  observation  and  the 
opinions  expressed  in  the  Commission. 

Mr.  Papiniu  insists  that  the  Commission  take  into  consideration  the  observa- 
tion he  has  made  and  that  it  be  taken  into  account  in  such  form  as  the  Com- 
mission may  deem  proper. 

The  President  says  that  the  report  will  mention  the  exchange  of  views 
called  forth  by  Mr.  Papiniu's  remarks  and  states  that,  with  this  reservation, 
Article  ZZ  is  adopted. 

Article  34  is  read : 

In  the  absence  of  a  stipulation  to  the  contrary,  in  case  of  the  death,  retirement,  or 
disability  from  any  cause  of  one  of  the  arbitrators,  his  place  shall  be  filled  in  accordance 
with  the  method  of  his  appointment. 

This  article  is  adopted. 


668  THIRD  COMMISSION 

Article  35  is  read : 

The  tribunal's  place  of  session  is  selected  by  the  parties.  Failing  this  selection,  Article 
25  of  the  present  Convention  is  applied. 

The  place  thus  fixed  cannot  be  changed  by  the  tribunal  except  by  virtue  of  a  new 
agreement  between  the  interested  States. 

This  article  is  adopted. 
Article  36  is  read: 

The  parties  have  the  right  to  appoint  delegates  or  special  agents  to  attend  the  tribunal, 
for  the  purpose  of  serving  as  intermediaries  between  them  and  the  tribunal. 

They  are  further  authorized  to  retain,  for  the  defense  of  their  rights  and  interests 
before  the  tribunal,  counsel  or  advocates  appointed  by  them  for  this  purpose. 

Mr.  Seth  Low  requests  that  the  following  question  relative  to  the  scope 
of  this  article  be  put  to  the  committee  of  examination: 

Is  it  the  intention  that  the  members  of  the  Permanent  Court,  Avho  are  not 
members  of  the  special  tribunal,  shall  be  permitted  to  serve  as  delegates,  special 
agents,  counsel,  or  advocates  before  the  special  tribunal?  This  point  is  not 
clear.     I  propose  that  the  committee  of  examination  consider  the  question. 

The  President  states  that  the  committee  of  examination  will  make  known, 
at  the  opening  of  the  next  meeting,  its  reply  to  the  question  propounded  by  Mr. 
Seth  Low. 

He  adds  that,  in  view  of  the  lateness  of  the  hour,  the  meeting  might  be 
adjourned  to  Saturday,  July  22,  at  2  o'clock.     (Adopted.) 

The  meeting  adjourns. 


161] 

EIGHTH   MEETING 

JULY  22,  1899 


Mr.  Leon  Bourgeois  presiding. 

The  President  says  that  proofs  of  the  minutes  of  the  last  two  meetings 
not  yet  having  been  distributed,  the  Commission  will  hold  a  final  meeting  to  be 
devoted  to  the  adoption  of  the  minutes. 

Mr.  Bourgeois  recalls  that  the  Commission  is  to  take  up  the  second  reading 
of  Section  3  of  the  project  (International  commissions  of  inquiry),  which  was 
reserved. 

Mr.  Delyanni  states  that  he  has  received  instructions  from  his  Government 
to  adhere  to  Section  3  (International  commissions  of  inquiry)  as  adopted  by 
the  committee  of  examination. 

Mr.  Miyatovitch  says  that  the  Royal  Government  of  Serbia,  which  he 
informed  of  the  result  of  the  last  meeting,  appreciated  the  spirit  of  conciliation 
in  which  the  committee  of  examination  endeavored  to  find  acceptable  solutions 
and  has  authorized  its  delegation  to  accept  the  text  of  Section  3  without  reserva- 
tion. 

The  President  officially  acknowledges  the  declarations  of  the  delegates  of 
Greece  and  of  Serbia  and  thanks  them  in  the  name  of  the  Commission. 

Mr.  Bourgeois  says  that  he  has  received  the  following  letter  from  Mr. 
Beldiman  : 

Mr.  President:  I  have  just  received  from  Bucharest  the  text,  which 
I  hasten  to  communicate  to  you,  of  Article  9  in  the  form  which  my  Govern- 
ment proposes  that  it  assume  : 

"  In  disputes  of  an  international  nature  involving  neither  honor  nor 
essential  interests,  and  arising  from  a  difference  of  opinion  on  points  of 
fact,  the  signatory  Powers  deem  it  expedient  that  the  parties  who  have  not 
been  able  to  come  to  an  agreement  by  means  of  diplomacy,  should,  as  far  as 
circumstances  allow,  institute  an  international  commission  of  inquiry,  to 
facilitate  a  solution  of  these  disputes  by  elucidating  the  facts  by  means  of 
an  impartial  and  conscientious  investigation." 

As  you  will  observe,  the  text  prepared  by  the  Royal  Government  is 
drawn  up  in  the  same  spirit  as  the  last  text  drafted  by  the  committee  of 
examination.  The  difTerence  is  not  essential,  and  I  am  pleased  to  hope  that 
you  will  be  good  enough  to  lend  your  friendly  support  to  our  proposal,  which 
is  inspired  by  a  sentiment  of  conciliation  and  by  the  desire  to  facilitate  the 
task  of  the  Conference. 

As  for  the  new  readings  of  Articles  10  and  13  adopted  by  the  committee, 
my  Government  has  no  objection  to  these  revised  versions. 

With  the  request  that  you  will  kindly  have  the  proposal  of  the  Roumanian 
Government  concerning  Article  9  brought  to  the  attention  of  the  committee 

669 


670  THIRD  COMMISSION 

of  examination  and  of  the  Third  Commission,  I  take  advantage  of  this  op- 
portunity to  reiterate,  Mr.  President,  the  earnest  assurance  of  my  high  con- 
sideration. 

(Signed)     A.  Beldiman. 

The  President  says  that  Mr.  Beldiman's  communication,  containing  a  new 
reading  for  Article  9,  was  transmitted  to  the  committee  of  examination,  and  he 
gives  the  reporter  the  floor. 

ChevaHer  Descamps  makes  the  following  report  in  the  name  of  the  com- 
mittee of  examination: 

In  conformity  with  the  Commission's  decision,  the  committee  of  examination 
met  for  the  further  consideration  of  Articles  9-13  of  the  draft  Convention  on 
the  pacific  settlement  of  international  disputes.  The  delegates  of  Bulgaria, 
Greece,  Roumania,  and  Serbia  attended  this  meeting.  His  Excellency  Mr. 
Eyschen,  author  of  the  amendment  concerning  the  new  guaranties  to  be  estab- 
lished for  the  operation  of  international  commissions  of  inquiry,  was  also  present 
at  the  meeting. 

The  committee  examined  the  modifications  to  be  made  in  Article  9  in 
order  to  bring  about  its  unanimous  adoption  by  the  Powers.  After  a  discussion, 
in  which  there  constantly  prevailed  the  most  sincere  spirit  of  conciliation,  the 
committee   decided   upon   the    following  text: 

In  disputes  of  an  international  nature  arising  from  a  difference  of  opin- 
ion regarding  facts,  the  signatory  Powers  deem  it  expedient,  to  facilitate  the 
solution  of  these  disputes,  that  the  parties  who  have  not  been  able  to  come 
to  an  agreement  by  means  of  diplomacy,  should  institute  international  com- 
missions of  inquiry  in  order  to  elucidate  all  the  facts  by  means  of  an  impar- 
tial and  conscientious  investigation. 

[62]  The  engagement  implied  in  the  original  text  of  Article  9  being  suppressed, 
the  committee  thought  that  there  was  no  reason  for  maintaining  the  reserva- 
tions made  with  regard  to  this  engagement. 

Moreover,  it  struck  out  of  the  original  text  the  expressions  "  which  may 
form  the  object  of  local  determination  "  and  "  on  the  spot,"  Mr.  Asser  having 
justly  observed  that  these  expressions  were  inexact  and  applied  but  imperfectly 
to  the  facts  that  the  international  commissions  of  inquiry  are  called  upon  to 
ascertain. 

To  give  precise  form  to  the  general  proposal  which  he  had  made  in  the 
commission,  his  Excellency  Mr.  Eyschen  submitted  the  text  of  an  additional 
article,  which,  after  undergoing  certain  changes  suggested  by  Count  Nigra,  was 
adopted  as  follows: 

The  international  commissions  of  inquiry  are  constituted  by  special 
agreement  between  the  parties  in  dispute. 

The  inquiry  convention  defines  the  facts  to  be  examined  and  the  extent 
of  the  powers  of  the  commissioners. 

It  settles  the  procedure. 

At  the  inquiry  both  sides  must  be  heard. 

The  form  and  periods  to  be  observed,  if  not  stated  in  the  inquiry  con- 
vention, are  decided  by  the  commission  itself. 

Finally,  the  committee  considered  the  following  amendment  to  Article  13, 
submitted  by  Mr.  Stancioff  :     "  The  report  of  the  international  commission  of 


EIGHTH  MEETING,  JULY  22,  1899  671 

inquiry  leaves  to  the  Governments  in  controversy  entire  freedom,  either  to  con- 
clude an  amicable  settlement  based  upon  this  report,  or  to  consider  the  report 
as  never  having  been  made." 

It  seemed  to  the  committee  that  this  last  expression  might  be  going  too  far. 
It  thought  that  the  freedom  of  the  States  could  be  put  in  some  other  way  and 
preferred  the  following  formula  proposed  by  Mr.  Odier  :  "  The  report  of  the  in- 
ternational commission  is  limited  to  a  finding  of  facts,  and  has  in  no  way  the  char- 
acter of  an  award.  It  leaves  to  the  Powers  in  dispute  entire  freedom  as  to  the 
effect  to  be  given  to  this  finding." 

Such  are  the  three  modifications  proposed  by  the  committee  on  the  subject 
of  international  commissions  of  inquiry. 

These  proposals  are  inspired  by  a  desire  to  attain  results  acceptable  to  all. 
The  committee  hopes  that  the  proposals  will  be  examined  by  the  Commission  from 
this  point  of  view  and  that  a  definite  agreement  may  be  reached  on  these  bases, 
or  at  any  rate  on  bases  similar  to  these  provisions. 

The  President  says  that  the  committee  of  examination,  after  having  studied 
the  Roumanian  Government's  proposal,  succeeded  in  drafting  a  text  in  which 
the  scruples  expressed  by  that  Government  were  taken  into  account.  The  object 
of  the  new  provision  suggested  by  Mr.  Beldiman  was  to  emphasize  the  purely 
optional  character  of  the  recourse  to  commissions  of  inquiry. 

The  committee  felt  that  this  purpose  was  accomplished  by  replacing  the 
words  "  agree  to  have  recourse  "  in  the  original  text  by  "  deem  it  expedient  to 
have  recourse."  This  formula  was  accepted  by  the  delegations  of  Serbia  and 
of  Greece,  but  the  delegation  of  Roumania  desires  to  make  still  stronger  the 
optional  character  of  the  provision  and  requests  that  the  two  phrases  which 
had  been  stricken  out  —  that  is  to  say,  "  involving  neither  the  honor  nor  vital  in- 
terests of  the  interested  Powers,"  and  "  so  far  as  circumstances  allow  " —  be 
retained. 

The  President  gives  Mr.  Beldiman  the  floor  to  explain  his  proposal. 

Mr.  Beldiman  says  that  he  had  reported  to  his  Government  the  last  delibera- 
tion of  the  committee  of  examination,  and  that  he  had  informed  it  of  the  two 
readings  under  consideration. 

The  Roumanian  Government  sent  him  in  reply  the  formula  which  he  com- 
municated to  the  President  in  writing  and  which  he  requests  the  Commission  to 
adopt. 

Mr.  Beldiman  sets  forth  the  reasons  why  he  wishes  to  have  Article  9  modi- 
fied as  he  has  proposed,  and  he  adds  that  in  addition  to  restoring  the  phrase  "  in- 
volving neither  the  honor  nor  vital  interests  of  the  interested  parties,"  his 
Government  would  like  to  have  the  Commission  also  replace  the  word  "  vital " 
by  "  essential,"  which  seems  to  it  to  be  sufficient. 

He  recalls  that  by  accepting  Article  9  in  this  form,  his  Government  wished 
to  give  proof  of  the  sincere  desire  of  bringing  about  unanimity  on  this  difficult 
question  by  which  it  is  animated. 

Their  Excellencies  Sir  Julian  Pauncefote  and  Count  Nigra  support  the 
wording  proposed  by  Mr.  Beldiman. 

The  President  says  that  the  idea  of  the  committee  of  examination  has  always 
been  to  state  clearly  the  optional  character  of  Article  9.  However,  if  Mr. 
Beldiman  believes  that  the  wording  he  proposes  better  defines  this  character, 
he  thinks  that  the  committee  will  have  no  objection  to  supporting  it. 

Mr,  Lammasch  says  that  he  had  proposed  an  almost  identical  reading,  but 


672  THIRD  COMMISSION 

that  it  was  thought  not  advisable  to  adopt  it,  in  the  belief  that  the  optional 
tendency  of  the  article  was  sufficiently  plain  from  the  text. 

Mr.  Veljkovitch  states  that  the  delegation  of  Serbia  recommended  to  its 
[63]   Government  adoption  of  the  text  proposed  by  the  committee  of  examina- 
tion.    That  is  the  text  which  he  is  now  authorized  to  accept. 

Besides,  he  does  not  think  that  the  modifications  which  Mr.  Beldiman  sug- 
gests be  made  in  the  text  are  as  palliative  as  they  seem  to  be  considered. 

From  the  point  of  view  in  which  we  are  placed,  says  he,  it  would  seem  to 
be  evident  that  the  fewer  the  clauses  capable  of  provoking  discussion  that  are  con- 
tained in  a  provision,  the  more  favorable  will  the  provision  be  to  the  smaller 
Powers,  which  are  not  in  so  advantageous  a  position  as  the  great  Powers  to 
make  their  opinions  tell.  In  so  far  as  Article  9  is  concerned,  we  find  that  its 
optional  character  is  sufficiently  indicated  in  the  wording  proposed  by  the  com- 
mittee of  examination.  If  new  stipulations  are  introduced  therein,  we  run  the 
risk  of  smothering  the  fundamental  idea,  that  is  to  say,  this  optional  character. 
In  effect,  we  can  foresee  that  there  will  be  discussions  as  to  whether  national 
honor  and  vital  interests  actually  are  involved.  In  these  discussions  the 
smaller  States  will  find  themselves  in  a  position  of  inferiority  as  com- 
pared with  the  great  Powers.  The  same  is  true  of  the  clause  "  so  far  as  cir- 
cumstances allow."  Here  again  it  is  not  the  small  Powers  who  will  have  the 
advantage.  Now,  these  situations  of  inequality  are  the  very  things  we  wish 
to  avoid  as  far  as  possible.  In  an  international  convention,  where  all  the  con- 
tracting parties  should  be  placed  on  a  footing  of  equality,  we  must  not,  by  the 
use  of  vague  clauses,  create  situations  which  would  be  the  very  negation  of  the 
principle  recently  proclaimed  by  Count  Nigra,  namely,  that  there  are  neither  great 
nor  small  Powers ;  there  are  only  equal  and  independent  Powers, 

We  therefore  prefer  to  retain  the  text  of  Article  9  in  the  form  proposed  by 
the  committee  of  examination,  which  excludes,  or  at  least  diminishes,  the  ob- 
jectionable features  I  have  pointed  out. 

Mr.  Rolin  strongly  insists  that  Mr.  Beldiman's  proposal  be  adopted.  He 
recognizes  that  the  reporter's  explanations  affirm  to  a  certain  extent  the  op- 
tional nature  of  Article  9;  but  it  is  essential,  in  his  opinion,  that  this  optional 
nature  should  appear  from  the  text  itself,  not  from  the  report. 

Count  de  Macedo  states  that  he  was  disposed  to  accept  the  original  text 
of  the  article,  with  the  two  phrases  which  have  been  stricken  out.  Since  the 
formula  proposed  by  Mr.  Beldiman  restores  them,  the  delegation  of  Portugal 
is  ready  to  support  it  in  a  spirit  of  compromise. 

Mr.  Delyanni  says  that  he  will  vote  for  Mr.  Beldiman's  proposal,  if  it 
can  secure  a  unanimous  vote. 

The  President  puts  Article  9  to  vote  by  division. 

He  asks  the  Commission  to  pass,  first  of  all,  on  the  question  whether,  in 
its  opinion,  the  two  phrases  which  Mr.  Beldiman  desires  restored,  should  be 
added  to  the  committee's  text.  The  Commission  decides  almost  unanimously 
—  there  being  only  one  negative  vote  (that  of  Serbia)  and  one  abstention  (that 
of  Turkey)  — to  restore  the  two  phrases  in  the  form  desired  by  Mr.  Beldiman. 

Mr.  Veljkovitch:  We  were  invited  to  attend  the  meeting  of  the  com- 
mittee of  examination,  so  that  we  might  know  at  once  the  text  to  be  submitted 
to  our  Government.  We  accepted  the  committee's  invitation,  we  communicated 
to  our  Government  the  text  adopted  by  the  committee  of  examination,   with 


EIGHTH  MEETING,  JULY  22,  1899  673 

a  favorable  recommendation,  and  our  Government  hastened  to  accept  the  pro- 
posed reading.  Now  the  text  of  the  committee  of  examination  is  modified  by 
the  Commission,  and  no  one  has  defended  this  text  before  the  Commission, 
I  desire  that  it  be  expressly  stated  that  it  is  the  text  of  its  own  committee  of 
examination  against  which  the  Commission  has  voted. 

The  President  confirms  the  fact  that  it  is  indeed  the  text  of  the  committee 
of  examination  against  which  the  vote  has  been  cast, 

Mr.  Miyatovitch  states  that  he  was  obliged  to  vote  against  the  proposal 
of  the  delegate  of  Roumania  by  virtue  of  instructions  previously  transmitted 
to  him.  He  has  no  doubt  that  his  Government  will  permit  him  to  join  in  the 
unanimity  which  has  just  been  manifested. 

The  President  thanks  the  delegate  of  Serbia  for  his  declaration  and  puts 
Article  9  as  a  whole  to  vote  in  the  following  definitive  form : 

In  disputes  of  an  international  nature  involving  neither  honor  nor  essential  interests, 
and  arising  from  a  difference  of  opinion  on  points  of  fact,  the  signatory  Powers  deem  it 
expedient  that  the  parties  who  have  not  been  able  to  come  to  an  agreement  by  means  of 
diplomacy,  should,  as  far  as  circumstances  allow,  institute  an  international  commission 
of  inquiry,  to  facilitate  a  solution  of  these  disputes  by  elucidating  the  facts  by  means  of  an 
impartial  and  conscientious  investigation. 

[64]  Baron  Bildt  requests  an  explanation  of  the  omission  of  the  expression 
"  on  the  spot,"  which  appeared  in  the  original  text, 

Mr.  Asser  explains  that  the  omission  of  the  words  "  on  the  spot "  is  the 
necessary  consequence  of  the  omission  of  the  passage  "  which  may  form  the 
object  of  local  determination,"  voted  at  his  suggestion  by  the  committee  of  ex- 
amination, in  order  to  give  the  institution  a  more  general  scope  by  extending  it 
to  all  questions  concerning  points  of  fact.  This  can  be  done  without  difficulty 
when  recourse  to  these  commissions  is  freed  from  its  obligatory  character. 

The  President  adds  that  the  committee  was  of  the  opinion  that  the  original 
reading  unduly  restricted  the  scope  of  Article  9  by  excluding,  for  instance, 
cases  of  maritime  disputes  in  which  it  is  evident  that  investigation  on  the  spot 
would  not  correspond  with  reality. 

After  these  explanations  Article  9  is  adopted  without  a  vote  in  the  form 
proposed  by  Mr.  Beldiman, 

The  Commission  passes  to  Article  10. 

Chevalier  Descamps  states  that  the  text  of  this  article  is  brand  new.  It 
was  adopted  by  the  committee  in  deference  to  the  desire  expressed  by  his  Ex- 
cellency Mr,  Eyschen  that  the  conditions  under  which  commissions  of  inquiry 
would  be  called  upon  to  undertake  their  investigations  be  determined.  It  is 
therefore  proposed  that  Article  10  read  as  follows : 

The  international  commissions  of  inquiry  are  constituted  by  special  agreement  between 
the  parties  in  dispute. 

The  inquiry  convention  defines  the  facts  to  be  examined  and  the  extent  of  the  powers 
of  the  commissioners. 

It  settles  the  procedure. 

At  the  inquiry  both  sides  must  be  heard. 

The  form  and  the  periods  to  be  observed,  if  not  stated  in  the  inquiry  convention,  are 
decided  by  the  commission  itself. 

Chevalier  Descamps  says  that  in  wording  this  article,  the  committee  bor- 
rowed certain  provisions   from  arbitration  procedure.     Thus  the  necessity   of 


674  THIRD  COMMISSION 

a  special  convention,  as  stated  in  the  first  paragraph,  is  similar  to  the  stipulation 
in  Article  30  relative  to  the  arbitration  compromis. 

The  two  provisions  that  follow  are  also  borrowed  from  arbitration  pro- 
cedure. 

The  committee  wished  to  state  in  a  formal  manner  that  both  sides  must 
be  heard  in  the  investigation. 

Finally,  as  regards  the  form  and  periods  to  be  observed,  it  was  decided  that 
they  should  be  determined  by  the  convention,  but  that  the  commission  itself  should 
settle  these  matters,  as  is  provided  in  Article  48,  in  case  the  convention  itself 
should  not  settle  them. 

Article  10  is  adopted. 

Article  11  is  read: 

The  Powers  in  dispute  undertake  to  supply  the  international  comuifssion  of  inquiry, 
as  fully  as  they  may  think  possible,  with  all  means  and  facilities  necessary  to  enable  it  to 
become  completely  acquainted  with  and  to  accurately  understand  the  facts  in  question. 

His  Excellency  Sir  Julian  Pauncefote  asks  why  the  expression  "  the  in- 
terested Powers  "  has  been  replaced  by  "  in  dispute." 

The  President  replies  that  it  was  desired  to  limit  within  narrow  bounds 
the  scope  of  the  article  and  to  prevent  Powers  that  are  strangers  to  the  dispute, 
although  interested  in  its  settlement,  from  unwarranted  intervention  in  the  con- 
troversy. 

His  Excellency  Sir  Julian  Pauncefote  states  that  he  is  satisfied  with  this 
explanation. 

Article  11  is  adopted. 

Article  12  is  read : 

The  international  commission  of  inquiry  communicates  its  report  to  the  interested 
Powers,  signed  by  all  the  members  of  the  commission. 

Article  12  is  adopted. 
Article  13  is  read: 

The  report  of  the  international  commission  of  inquiry  has  in  no  way  the  character  of 
an  arbitral  award.  It  leaves  to  the  Powers  in  dispute  the  option  either  of  concluding  a 
friendly  arrangement  on  the  basis  of  this  report  or  of  having  recourse  subsequently  to 
mediation  or  arbitration. 

Article  13  is  adopted. 
[65]   Section  3,  which  had  been  reserved,  having  thus  been  adopted,  the  President 
proposes  that  the  Commission  resume  the  examination  on  second  reading  of 
the  articles  on  arbitration  at  the  point  where  it  left  off. 

His  Excellency  Sir  Julian  Pauncefote  asks  that  the  Commission  take  up 
first  Article  26,  in  which  he  would  like  to  make  two  slight  changes. 

In  the  first  place,  he  would  Hke  to  have  it  stated  in  the  second  paragraph, 
near  the  end,  that  "  Even  non-signatory  Powers  .  .  .  may  have  recourse  to  the 
jurisdiction  of  the  Court  within  the  conditions  laid  down  in  the  regulations," 
and  not  in  the  Convention,  which,  as  a  matter  of  fact,  does  not  contain  any 
prescription  of  this  kind. 

This  modification  is  adopted. 

His  Excellency  Sir  Julian  Pauncefote  proposes,  in  the  second  place,  that 
the  benefit  of  paragraph  1  relative  to  the  assistance  given  by  the  International 


EIGHTH  MEETING,  JULY  22,  1899  675 

Bureau  at  The  Hague  to  the  functioning  of  courts  of  arbitration  be  extended  to 
commissions  of  inquiry. 

Dr.  Zorn  would  have  serious  objections  to  laying  down  a  provision  common 
to  commissions  of  inquiry  and  courts  of  arbitration. 

His  Excellency  Sir  Julian  Pauncefote  does  not  insist  upon  his  proposal. 

The  President  recalls  that  toward  the  close  of  the  last  meeting  the  dis- 
cussion of  Article  36  had  commenced  and  that  Mr.  Seth  Low  had  expressed  a 
desire  for  enlightenment  on  the  incompatibility  between  the  duties  of  members  of 
the  Permanent  Court  and  those  of  delegates,  special  agents,  counsel,  or  advo- 
cates before  that  Court. 

Chevalier  Descamps  makes  known  the  result  of  the  study  of  this  ques- 
tion by  the  committee  of  examination. 

He  says  that  the  committee  has  decided  to  meet  Mr.  Seth  Low's  wishes 
by  inserting  the  following  remark  in  the  report:  "No  member  of  the  Court 
may  during  the  exercise  of  his  functions  as  a  member  of  an  arbitral  tribunal 
accept  a  designation  as  special  agent  or  advocate  before  another  arbitral  tribunal." 

Mr.  Descamps  says  that  this  provision  was  dictated  by  reasons  of  propriety 
which  the  Commission  will  appreciate. 

Mr.  Asser  says  that  he  well  understands  the  reasons  which  have  led  the 
committee  to  impose  this  incompatibility  upon  the  members  of  the  Court,  but 
he  would  like  to  have  it  stated  that  the  expression  "  arbitral  tribunal "  here 
means  any  tribunal  formed  within  the  Permanent  Court  of  Arbitration. 

Mr.  Rolls  presents  the  following  observations,  which  are  translated  by 
Baron  d'Estournelles  : 

Far  from  wishing,  like  Mr.  Asser,  to  restrict  this  incompatibility,  Mr.  Holls 
is,  on  the  contrary,  of  the  opinion  that  it  should  be  extended  still  further.  He 
thinks  that,  if  there  is  a  sound  reason  from  the  point  of  view  of  the  independence 
and  authority  of  the  arbitrator  for  this  arbitrator  to  be  subjected  in  his  own 
country  to  the  incompatibility  pointed  out  by  Mr.  Seth  Low,  it  is  just  as  important 
that  he  should  be  subject  to  the  same  disqualification  in  all  countries  that  have 
recourse  to  arbitration.  That  is  the  rule  followed  in  England  and  in  America: 
'■  once  a  judge  always  a  judge." 

Mr.  Holls  considers  that  this  rule  would  be  perhaps  the  only  safe  one  to 
follow.  He  would  like  to  propose  to  the  Commission,  as  he  did  as  a  matter  of  fact 
propose  to  the  committee  of  examination,  that  the  members  of  the  Court  should 
have  the  right  to  accept  designations  from  their  own  Government  or  from  the 
Government  which  may  have  appointed  them,  but  from  no  other.  It  seems 
to  him  that  the  Conference  ought  not  to  overstep  these  bounds,  either  expressly 
or  by  implication.  The  relations  between  the  judges  and  the  Governments  ap- 
pointing them  are,  it  is  true,  of  a  private  nature,  concern  only  them,  and  would 
probably  vary  according  to  circumstances,  especially  in  so  far  as  the  question 
of  personal  obligations  or  remuneration  is  concerned.  The  question  which  has 
just  been  discussed  is  of  equal  interest  to  all  countries,  since  it  is  of  importance 
to  all  that  the  judges  be  not  only  independent  but  above  all  suspicion. 

It  has  been  contended  that,  if  this  principle  were  to  be  admitted,  the  list  of 
arbitrators  would  be  diminished.  Mr.  Holls  replies  that  the  rule  prohibiting 
merely  temporary  plurality  of  office  would  be  too  limited  in  scope,  for  it  would 
permit  plurality  of  office  in  the  case  of  an  arbitrator  who,  having  formerly  sat 
in  an  arbitration  court,  might  reappear  as  an  advocate  before  his  erstwhile  col- 


676  THIRD  COMMISSION 

leagues,  with  an  added  authority  acquired  as  the  result  of  his  previous  functions. 
Summing  up,  Mr.  Holls  believes  that  an  arbitrator  should  never  be  exposed 
to  the  danger  of  compromising  or  of  diminishing  his  authority.  The  prestige 
of  arbitration  must  therefore  be  preserved  by  prescribing  an  incompatibility  which 
is  of  interest  to  all  the  States. 

Chevalier  Descamps  replies,  first  to  Mr.  Asser,  that  the  committee  had  in 
mind  only  an  arbitration  tribunal  formed  within  the  Court.  He  asks  the  dele- 
gate of  the  Netherlands  whether  he  desires  to  submit  a  formal  proposal,  or 
whether  the  insertion  of  the  explanation  in  the  report  will  suffice. 

Mr.  Asser  states  that  he  will  be  satisfied  with  the  insertion  in  the  report. 

Chevalier  Descamps  then  replies  to  Mr.  Holls  that  the  States  remain  free 

to  lay  down  such  conditions  and  to  establish  such  incompatibilities  as  they  deem 

advisable.     They  have  the  right  to  forbid  their  arbitrators  to  accept  the 

[66]   functions  of  advocate  in  any  arbitral  tribunal  in  the  world ;  but  it  is  not  for 

the  general  Convention  to  make  such  a  provision. 

Mr.  Lammasch  remarks  that,  if  it  were  felt  that  all  the  States  would 
apply  the  restriction  that  Mr.  Holls  asks  for,  there  would  be  no  reason  for  his 
proposal,  but  since  there  is  no  certainty  on  this  point,  the  Commission  should  take 
under  consideration  the  suggestion  of  the  delegate  of  the  United  States,  which 
attempts  to  surround  the  authority  and  impartiality  of  the  umpire  with  further 
guaranties. 

Chevalier  Descamps  observes  that  it  is  desired  to  establish  incompatibility 
with  regard  to  persons  who  perhaps  will  never  have  an  opportunity  of  becoming 
arbitrators  and  who  would  be  disqualified  by  the  mere  fact  of  having  their 
names  inscribed  upon  a  list.  That  would  be  an  exorbitant  provision,  which  would 
stand  in  the  way  of  recruiting  the  Court.  He  therefore  believes  that  it  is  suf- 
ficient to  have  settled  the  question  with  regard  to  one  point,  leaving  the  States 
free  with  respect  to  the  rest. 

Mr.  Rolls  says  that  in  this  matter  the  question  at  issue  does  not  involve  a 
Convention,  but  rather  propriety,  tact,  and  good  taste.  He  had  no  other  in- 
tention than  that  of  calling  forth  the  opinions  of  the  Conference  on  the  rule  to 
be  followed.  He  thanks  the  Commission  for  the  explanations  which  have  been 
presented  and  he  does  not  ask  for  a  vote. 

Sir  Julian  Pauncefote  states  that  he  concurs  likewise  in  the  formula  sub- 
mitted by  Mr.  Holls  and  the  reporter. 

Article  36  is  adopted. 

Article  37  is  read: 

The  tribunal  decides  on  the  choice  of  languages  to  be  used  by  itself,  and  to  be  author- 
ized for  use  before  it. 

The  President  says  that  Article  37  has  been  modified  from  its  original 
form  to  comply  with  a  request  of  his  Excellency  Count  Nigra  relative  to  the 
languages  to  be  employed  by  the  Court  itself  in  its  deliberations. 

Article  37  is  adopted. 

Articles  38  to  50  are  read  and  adopted  without  discussion  in  the  following 
form: 

Article  38 

As  a  general  rule  arbitration  procedure  comprises  two  distinct  phases:  pleadings  and 
oral  discussions. 


EIGHTH  MEETING,  JULY  22,  1899  677 

The  pleadings  consist  in  the  communication  by  the  respective  agents  to  the  members 
o^  the  tribunal  and  the  opposite  party  of  all  printed  or  written  acts  and  of  all  documents  con- 
taining the  grounds  relied  on  in  the  case.  This  communication  shall  be  made  in  the  form 
and  within  the  time  fixed  by  the  tribunal  in  accordance  with  Article  48. 

The  discussions  consist  in  the  oral  development  before  the  tribunal  of  the  arguments 
of  the  parties. 

Article  39 

Every  document  produced  by  one  party  must  be  communicated  to  the  other  party. 

Article  40 

The  discussions  are  under  the  direction  of  the  president. 

They  are  only  public  if  it  be  so  decided  by  the  tribunal,  with  the  assent  of  the  parties. 
They  are  recorded  in  minutes  drawn  up  by  the  secretaries  appoiixted  by  the  president. 
These  minutes  alone  have  an  authentic  character. 

Article  41 

After  the  close  of  the  pleadings,  the  tribunal  is  entitled  to  refuse  discussion  of  all 
new  papers  or  documents  which  one  of  the  parties  may  wish  to  submit  to  it  without  the 
consent  of  the  other  party. 

Article  42 

The  tribunal  is  free  to  take  into  consideration  new  papers  or  documents  to  which  its 
attention  may  be  drawn  by  the  agents  or  counsel  of  the  parties. 

In  this  case,  the  tribunal  has  the  right  to  require  the  production  of  these  papers  or 
documents,  but  is  obliged  to  make  them  known  to  the  opposite  party. 

Article  43 

The  tribunal  can,  besides,  require  from  the  agents  of  the  parties  the  production  of 
all  papers,  and  can  demand  all  necessary  explanations.  In  case  of  refusal,  the  tribunal  takes 
note  of  it. 

Article  44 

The  agents  and  counsel  of  the  parties  are  authorized  to  present  orally  to  the  tribunal 
all  the  arguments  they  may  consider  expedient  in  defense  of  their  case. 

Article  45 

They  are  entitled  to  raise  objections  and  points.  The  decisions  of  the  tribunal  on  these 
points  are  final,  and  cannot  form  the  subject  of  any  subsequent  discussion. 

[67]  Article  46 

The  members  of  the  tribunal  are  entitled  to  put  questions  to  the  agents  and  counsel  of 
the  parties,  and  to  ask  them  for  explanations  on  doubtful  points. 

Neither  the  questions  put,  nor  the  remarks  made  by  members  of  the  tribunal  in  the 
course  of  the  discussions  can  be  regarded  as  an  expression  of  opinion  by  the  tribunal  in 
general,  or  by  its  members  in  particular. 

Article  47 
The  tribunal  is  authorized  to  declare  its  competence  in  interpreting  the  compromis  as 
well  as  the  other  treaties  which  may  be  invoked  in  the  case,  and  in  applying  the  principles 
of  international  law. 

Article  48 
The  tribunal  is  entitled  to  issue  rules  of  procedure  for  the  conduct  of  the  case,  to  decide 
the  forms  and  time  in  which  each  party  must  conclude  its  arguments,  and  to  arrange  all  the 
formalities  required  for  dealing  with  the  evidence. 


678  THIRD  COMMISSION 

Article  49 

When  the  agents  and  counsel  of  the  parties  have  submitted  all  the  explanations  and 
evidence  in  support  of  their  case,  the  president  pronounces  the  discussion  closed. 

Article  SO 

The  deliberations  of  the  tribunal  shall  take  place  in  private.  Every  decision  is  taken 
by  a  majority  of  members  of  the  tribunal. 

The  refusal  of  a  member  to  vote  must  be  recorded  in  the  minutes. 

Article  51  is  read: 

The  award,  given  by  a  majority  of  votes,  must  state  the  reasons  on  which  it  is  based. 
It  is  drawn  up  in  writing  and  signed  by  each  member  of  the  tribunal. 

Those  members  who  are  in  the  minority  may  record  their  dissent  when  signing. 

The  President  says  that  his  Excellency  Count  Nigra  has  withdrawn  the 
proposal  which  he  had  submitted  with  regard  to  this  article  and  which  fixed 
the  period  within  which  the  award  should  be  executed.  It  was  agreed  that  the 
report  should  mention  Count  Nigra's  request,  but  that  the  text  of  the  article 
should  not  be  changed. 

Mr.  Veljkovitch  says  that  at  the  time  of  the  first  reading  it  had  been  asked 
that  the  necessity  of  giving  the  reasons  upon  which  the  award  is  based  should 
be  omitted,  on  the  ground  that  the  reasons  might  be  of  a  political  nature  and 
contain  criticisms  of  the  acts  of  the  Governments.  In  his  opinion,  politics  should 
never  be  mixed  up  with  an  arbitral  award.  Arbitrators  who  should  bring  politics 
into  the  award  would  be  overstepping  their  authority  and  exceeding  their  duty. 
Nevertheless  in  view  of  the  observation  which  was  made  at  the  last  meeting,  it 
would  perhaps  be  well  to  state  in  the  minutes  that  it  is  understood  that  the  arbitral 
award  must  never  be  accompanied  by  considerations  of  a  political  nature. 

Chevalier  Descamps  replies  that  the  judge  is  sovereign  in  deciding  upon 
the  reasons  with  which  he  deems  it  necessary  to  support  his  award.  We  may  be 
assured  that  he  will  devote  his  attention  to  administering  justice  and  will  not 
meddle  with  politics. 

Article  51  is  adopted. 

Article  52  is  read: 

The  award  is  read  out  at  a  public  sitting  of  the  tribunal  in  the  presence  of  the  agents 
and  counsel  of  the  parties,  or  they  having  been  duly  summoned  to  attend. 

Mr.  Lammasch  asks  for  an  explanation  of  the  meaning  of  the  words  "  or 
they  having  been  duly  summoned  to  attend." 

After  an  exchange  of  observations  by  his  Excellency  Count  Nigra,  Mr. 
Renault,  and  the  Reporter,  the  following  reading,  suggested  by  the  President, 
is  adopted :  "  The  award  is  read  out  at  a  public  sitting  of  the  tribunal,  the  agents 
and  counsel  of  the  parties  being  present,  or  duly  summoned  to  attend." 

Article  53  is  read : 

The  award,  duly  pronounced  and  notified  to  the  agents  of  the  parties  at  variance,  settles 
the  dispute  definitively  and  without  appeal. 

Article  53  is  adopted. 
Article  54  is  read : 


EIGHTH  MEETING,  JULY  22,  1899  679 

The  parties  can  reserve  in  the  compromis  the  right  to  demand  the  revision  of  the  award. 
[68]  In  this  case,  and  unless  there  be  an  agreement  to  the  contrary,  the  demand  must  be 
addressed  to  the  tribunal  which  pronounced  the  award.  It  can  only  be  made  on  the 
ground  of  the  discovery  of  some  new  fact  which  is  of  a  nature  to  exercise  a  decisive 
influence  upon  the  award  and  which,  when  the  tribunal  decided  the  case,  was  unknown  to 
the  tribunal  and  to  the  party  demanding  the  revision. 

Proceedings  for  revision  can  only  be  instituted  by  a  decision  of  the  tribunal  expressly 
recording  the  existence  of  the  new  fact,  recognizing  in  it  the  character  described  in  the  pre- 
ceding paragraph,  and  declaring  the  demand  admissible  on  this  ground. 

The  compromis  fixes  the  period  within  which  the  demand  for  revision  must  be  made. 

Chevalier  Descamps  explains  that  this  reading  was  adopted  on  the  pro- 
posal of  Mr.  AssER,  amended  by  a  proposal  of  the  American  delegation. 

Mr.  Asset  asks  whether  Baron  Bildt's  proposal  has  been  taken  into  account, 
which  provided  for  the  case  of  a  new  fact  discovered  between  the  close  of  the 
pleadings  and  the  rendering  of  the  award. 

He  says  that  this  suggestion  meets  an  hypothesis  which  may  occur  in  prac- 
tice, namely,  if  important  documents  constituting  a  new  fact  should  be  trans- 
mitted after  the  close  of  the  arguments.  Article  41  could  not  be  applied  to  such 
a  situation,  and  Mr.  Asser  proposes  that  it  be  provided  for  by  replacing  the 
expression  "  when  the  tribunal  decided  the  case  "  by  "  since  it  did  not  come  to 
the  knowledge  of  the  tribunal  until  after  the  close  of  the  pleadings." 

Baron  Bildt  recalls  the  reason  for  his  proposal.  He  mentions  the  case  in 
which  a  fact  that  was  presented  at  the  beginning  of  the  trial  and  passed  over 
as  unimportant  should  subsequently  be  illuminated  by  some  other  fact  showing 
its  full  force.  This  would  be  still  another  reason  for  revision,  which  should 
not  be  excluded.  However,  Baron  Bildt  states  that  he  is  satisfied  with  the 
reading  proposed  by  Mr  Asser. 

Chevalier  Descamps  offers  a  final  suggestion  that  the  following  wording 
be  adopted:  "  and  which,  at  the  time  the  discussion  was  closed,  was  unknown  to 
the  tribunal,  etc." 

This  proposal,  in  which  Messers.  Asser  and  Bildt  concur,  is  favorably  re- 
ceived by  the  Commission. 

Article  54,  thus  amended,  is  adopted. 

Article  55  is  read: 

The  award  is  binding  only  on  the  parties  who  concluded  the  compromis. 

When  there  is  a  question  as  to  the  interpretation  of  a  convention  to  which  Powers 
other  than  those  in  dispute  are  parties,  the  latter  notify  to  the  former  the  compromis  they 
have  concluded.  Each  of  these  Powers  is  entitled  to  intervene  in  the  case.  If  one  or  more 
avail  themselves  of  this  right,  the  interpretation  contained  in  the  award  is  equally  binding  on 
them. 

V 

This  article  is  adopted. 
Article  56  is  read: 

Each  party  pays  its  own  expenses  and  an  equal  share  of  the  expenses  of  the  tribunal. 

The  Reporter  remarks  that  the  reference  to  the  honoraria  of  the  arbitrators 
appearing  in  the  original  text  of  this  article  has  been  omitted,  as  it  was  considered 
unnecessary. 

This  article  is  adopted. 


680  THIRD  COMMISSION 

The  President  therefore  declares  the  draft  adopted  on  second  reading. 

His  Excellency  Turkhan  Pasha  says  that  the  Ottoman  delegation,  not 
having  received  as  yet  instructions  from  its  Government,  reserves  its  vote  on  the 
draft. 

His  Excellency  Turkhan  Pasha  is  informed  that  official  note  is  made  of 
his  declaration. 

Mr.  Veljkovitch  makes  the  following  address: 

The  first  delegate  of  Serbia  has  stated  that  our  Government  had  fully  and 
completely  adhered  to  Article  9  in  its  new  form,  as  submitted  to  us  by  the  com- 
mittee of  examination. 

As  this  version  has  been  modified  by  the  Commission,  we  shall  of  course 
be  compelled  to  ask  for  further  instructions  from  our  Government;  but  our 
first  delegate  has  already  informed  you  that  he  is  practically  certain  that  the 
Serbian  Government  will  not  wish  to  stand  apart  from  the  unanimous  vote  in 
favor  of  the  new  text,  and  that  therefore  he  hopes  to  be  authorized  to  join  the 
other  members  of  the  Commission  and  vote  for  Article  9  as  revised. 

Now  that  all  the  difficulties  have  been  removed  and  the  project  as  a  whole 

adopted,  it  seems  to  me  that  the  time  has  come,  and  I  consider  it  a  sort 

[69]  of  duty,  to  present  to  this  assembly  certain  explanations,  in  order  to  leave 

no  doubts  in  the  minds  of  the  members  of  the  Commission  as  to  the  nature 

of  the  reasons  which  prompted  our  opposition  to  various  portions  of  the  draft. 

At  the  outset  I  desire  to  state  clearly  and  categorically  that  our  attitude  was 
not  the  result  of  a  sort  of  distrust  or  even  of  hostility  toward  the  generous  and 
magnanimous  spirit  which  has  pervaded  this  Conference  and  to  which  we  would 
be  among  the  first  to  pay  tribute. 

The  proof  that  such  was  not  our  feeling  lies  in  the  fact  that  we  have  not 
been  opposed  to  any  formula  or  to  any  institution  favorable  to  the  maintenance 
of  peace  and  the  strengthening  of  pacific  relations  between  States.  We  have 
asked  only  that  these  formulas  and  these  institutions  should  contain  the  same 
engagements  for  all  the  contracting  parties.  Along  those  lines  we  should  not 
have  had  any  objections  to  accepting  institutions  that  are  clearly  obligatory,  if 
the  other  States  had  been  able  to  come  to  an  agreement  and  to  present  them. 

The  only  thought  that  has  guided  us  during  the  discussion  on  the  draft 
Convention  was  not  to  permit  any  clause  to  enter  therein  which  might  have  been 
dangerous  to  our  existence  and  our  dignity  as  an  independent  State.  Now,  we 
thought  that  we  perceived  such  a  danger  in  certain  of  the  provisions  of  the  draft, 
and  therefore  we  deemed  it  our  most  sacred  duty  to  arise  with  all  the  energy 
of  which  we  are  capable  in  defense  of  our  heritage  of  sovereignty  and  inde- 
pendence, in  defense  of  what  we  regard  as  the  primary  and  inviolable  rights 
of  every  State. 

That,  gentlemen,  is  the  sole,  the  only  reason  for  our  opposition. 

But  now,  as  the  result  of  the  statements  which  our  honorable  President  made 
at  the  last  meeting  —  statements  so  frank,  so  clear,  manifesting  such  lofty  views, 
such  noble  ideas  as  do  him  the  greatest  honor  —  our  apprehensions  have  been 
dissipated,  and  we  are  able  to  say  that,  without  giving  ourselves  over  to  danger- 
ous illusions,  we  feel  reassured. 

The  statements  you  have  made,  Mr.  President,  we  regard  as  of  great  im- 
portance. Not  having  before  me  the  text  of  your  speech,  I  cannot,  as  I  should 
like  to  do,  quote  your  very  words ;  but  I  do  not  believe  that  I  shall  do  injustice 
to  your  thought  in  repeating  at  least  a  part  of  your  address  as  follows :     "  It 


EIGHTH  MEETING,  JULY  22,  1899  681 

has  never  entered  the  mind  of  the  Commission  to  diminish  in  any  way  what- 
ever the  sovereignty  and  the  independence  of  States;  it  has  had  no  intention 
of  touching  in  any  manner  the  great  principle  of  the  equahty  of  independent 
States;  and,  finally,  the  general  spirit  of  the  Convention  is  rather  to  strengthen 
the  position  of  small,  peaceful  States  than  to  make  of  this  Convention  an  instru- 
ment of  oppression  in  the  hands  of  States  that  are  great  and  powerful." 

Upon  this  interpretation  of  the  general  spirit  of  the  Convention,  if  I  have 
Tendered  it  correctly,  the  Commission  has  placed  its  official  seal  by  receiving 
it  with  eager  and  unanimous  applause. 

In  view  of  this  fact,  I  believe  that  I  am  warranted  in  saying  that  this  state- 
ment will  henceforth  be  the  soul  of  the  Convention.  It  will  in  future  serve  as 
a  general  guide-post  to  show  clearly  and  with  certainty  the  spirit  in  which,  in 
case  of  doubt,  the  text  is  to  be  interpreted,  and  I  shall  always  congratulate  my- 
self on  having  been  the  instigator  of  this  statement. 

Under  these  conditions,  Mr.  President,  we  adhere  to  the  draft  which  the 
Third  Commission  has  prepared.  We  regard  it  as  an  expression,  albeit  modest 
yet  sincere,  of  the  general  desire  for  the  maintenance  of  peace.  We  consider 
the  domain  of  peace  the  most  propitious  domain  for  our  material  and  moral  de- 
velopment and  also  for  the  final  triumph  of  the  great  ideas  of  justice  and  equity, 
in  which  we  never  cease  to  place  our  hopes.     (Applause.) 

The  President  repHes :  We  thank  Mr.  Veljkovitch  for  the  words  he  has 
just  spoken.  In  going  over  certain  statements  that  I  made  at  the  last  meeting, 
Mr.  Veljkovitch  said  that  he  regarded  them  as  an  official  interpretation  of  the 
spirit  of  the  Convention.  My  words  were  merely  the  expression  of  the  unanimous 
sentiment  which  has  guided  us  in  our  work,  and  if  there  should  ever  be  any 
■doubt  in  future  as  to  our  intentions,  this  interpretation  will  force  itself  upon 
all  minds,  as  it  has  forced  itself  upon  the  members  of  the  Commission. 

Gentlemen,  we  have  to-day  completed  the  share  that  was  assigned  to  us  of 
the  work  of  the  Conference,  and  it  only  remains  for  me  to  transmit  to  his  Ex- 
cellency, Mr.  Staal,  our  President,  the  text  of  the  decisions  which  we  have 
reached. 

Before  we  separate,  I  wish  to  thank  you  for  your  kindly  courtesy  to  your 
bureau. 

The  committee  of  examination,  which  has  labored  in  your  midst,  has  per- 
formed, as  you  know,  a  considerable  and  particularly  delicate  task.  You  will  cer- 
tainly wish  to  express  your  gratitude  to  it  through  me  and  to  thank  especially 
[70]  Chevalier  Descamps  and  Baron  d'Estournelles,  who  were  good  enough 
to  accept,  the  one  the  duties  of  reporter,  and  the  other  those  of  secretary 
•of  the  committee  of  examination.     (Prolonged  applause.) 

His  Excellency  Count  Nigra  speaks  as  follows: 

Gentlemen,  we  have  still  another  duty  to  perform.  You  have  witnessed  the 
remarkable  manner  in  which  your  President  has  fulfilled  his  mission.  He  has 
presided  over  our  debates,  not  only  with  great  authority,  but  with  an  absolute  im- 
partiality and  a  spirit  of  conciliation  by  which  we  have  been  profoundly  touched. 
I  am  sure  that  I  am  interpreting  the  sentiments  of  all  in  expressing  our  gratitude  to 
Mr.  Bourgeois  and  in  assuring  him  that  we  shall  go  our  several  ways  with  the 
-conviction  that  he  has  rendered  a  great  and  valuable  service  to  the  cause  in  which 
we  have  collaborated.     (Loud  applause.) 

The  President  says  that  he  is  deeply  touched  by  the  words  which  his  Ex- 


682 


THIRD  COMMISSION 


cellency  Count  Nigra  has  spoken  and  by  the  sentiments  expressed  by  him  in 
the  name  of  the  Commission.  He  will  never  forget  the  courtesies  shown  him 
and  he  will  consider  it  as  the  honor  of  his  life  that  he  has  contributed  to  the 
progress  of  the  common  cause. 

The  meeting  adjourns. 

The  Commission  will  meet  for  the  last  time  on  Tuesday,  July  25,  at  2  o'clock, 
to  approve  Chevalier  Descamps'  report. 


NINTH    MEETING 

JULY  25,  1899 


Mr.  Leon  Bourgeois  presiding. 

The  President  says  that  the  minutes  of  the  meetings  held  on  July  19,  20,  and 
22  have  been  distributed  in  preliminary  proofs,  and  he  declares  them  adopted,  sub- 
ject to  such  corrections  as  the  delegates  may  indicate  to  the  secretariat. 

The  order  of  business  calls  for  approval  of  the  report  of  the  Third  Com- 
mission, drawn  up  by  Chevaher  Descamps  in  the  name  of  this  Commission. 

His  Excellency  Turkhan  Pasha  makes  the  following  declaration: 

The  Ottoman  delegation,  considering  that  the  work  of  the  Conference  is  in  an 
honest  and  humanitarian  cause,  intended  solely  to  consolidate  the  general  peace 
by  safeguarding  the  interests  and  rights  of  every  nation,  declares,  in  the  name  of 
its  Government,  that  it  adheres  to  the  draft  which  has  just  been  adopted,  on  the 
following  conditions  :  ( 1 )  It  is  formally  understood  that  recourse  to  good  offices, 
mediation,  commissions  of  inquiry,  and  arbitration  is  purely  optional  and  can  in  no 
case  assume  an  obligatory  character  or  degenerate  into  intervention;  (2)  The 
Imperial  Government  shall  be  free  to  judge  of  the  cases  in  which  its  interests  may 
permit  it  to  accept  these  means  of  settlement,  and  its  abstention  or  refusal  to  have 
recourse  thereto  shall  not  be  considered  by  the  signatory  States  as  an  unfriendly 
act. 

It  goes  without  saying  that  in  no  case  shall  the  means  in  question  be  applied 
to  matters  of  a  domestic  nature. 

The  President  says  that  Chevalier  Descamps'  report  having  been  distrib- 
uted, he  thinks  that  he  can  submit  it  to  the  Commission  immediately  for  adoption 
and  asks  whether  any  one  desires  to  make  any  comments  on  this  work. 

The  report  is  adopted  without  comment. 

The  President  speaks  as  follows: 

I  congratulate  myself,  gentlemen,  on  the  reply  which  you  have  made  to  my 
question.  I  see  in  it  a  striking  manifestation  of  your  approval  of  this  remarkable 
work  of  our  reporter. 

In  drawing  up  this  memorable  document,  Mr.  Descamps  has  rendered  two 
great  services  to  the  cause  which  has  gathered  us  here  together.  In  the 
[71]  first  place,  he  has,  by  means  of  a  continuous  and  perfectly  clear  commen- 
tary, made  it  possible  to  understand  and  to  interpret  correctly  all  the  clauses 
which  you  have  adopted  with  a  view  to  the  peaceful  settlement  of  international 
disputes.  I  have  already  said  that  the  first  exposition  which  he  made  of  these  pro- 
visions would  be  a  sure  guide,  not  only  for  the  delegates  in  their  discussions,  but 
also  for  all  the  Governments.  I  can  now  say  that  with  your  adhesion  Mr.  Des- 
camps' report  will  be  a  useful  guide  for  all  civilized  nations. 

But  your  reporter  has  rendered  you  still  another  service.     Not  only  has  he 

683 


684 


THIRD  COMMISSION 


correctly  interpreted  each  article  according  to  the  intentions  of  its  authors,  but 
he  has  also  illuminated  every  portion  of  your  work  with  the  light  of  his  high 
authority  and  profound  learning  in  international  law. 

Mr.  Descamps  is  one  of  those  who  have  devoted  themselves  most  wisely  and 
usefully  to  the  cause  of  arbitration.  He  put  into  service,  in  addition  to  the  fruits 
of  his  experience,  all  his  personal  abilities,  and  I  am  happy  to  reiterate  here  the 
expression  of  our  profound  gratitude.     {Prolonged  applause.) 

The  President  declares  the  session  of  the  Third  Commission  closed  and  asks 
that  the  bureau  be  empowered  to  approve  the  minutes  of  the  present  meeting. 
{Adopted.) 

The  meeting  adjourns. 


COMMITTEE  OF  EXAMINATION 


[1] 

FIRST   MEETING 

MAY  26,  1899^ 


Mr.  Leon  Bourgeois  presiding. 

The  committee  named  by  the  Third  Commission,  at  its  session  on  May  26," 
proceeds  to  the  election  of  its  board  of  officers. 

The  following  are  unanimously  elected : 

President  and  reporter :     Chevalier  Descamps. 

Secretary:  Baron  d'Estournelles  de  Constant  is  asked  to  be  willing  to 
assume  these  duties.  Mr.  Jarousse  de  Sillac,  Attache  of  Embassy,  will  fulfill 
those  of  assistant  secretary. 

The  committee  reviews  the  practical  methods  of  studying  as  promptly  as 
possible  the  diflFerent  drafts  and  amendments  which  may  be  laid  before  it. 

It  acknowledges  the  receipt  of  the  following  documents : 

1.  "  Outlines  for  the  preparation  of  a  draft  Convention  to  be  concluded  be- 
tween the  Powers  taking  part  in  the  Hague  Conference,"  submitted  by  the  Russian 
delegation,  with  a  document  attached  (Draft  arbitral  code).' 

2.  Proposal  made  by  his  Excellency  Sir  Julian  Pauncefote  with  a  view  to 
the  creation  of  a  permanent  tribunal  of  arbitration.* 

3.  Supplementary  note  submitted  by  the  Russian  delegation  for  the  same 
purpose.** 

4.  Amendments  of  his  Excellency  Count  Nigra  to  the  draft  of  the  Russian 
delegation.* 

The  committee  decides  that  this  last  document  shall  be  printed  and  distrib- 
uted, as  was  decided  by  the  Commission  in  the  case  of  the  three  preceding  docu- 
ments. 

With  a  view  to  permitting  the  Commission  on  arbitration  to  meet  as  soon  as 
possible,  the  committee  decides  to  prepare  for  Monday,  May  29,  a  study  of  the 
first  six  articles  of  the  Russian  draft,  concerning  good  offices  and  mediation. 

The  meeting  adjourns. 

1  House  in  the  Wood.  Present :  Their  Excellencies  Count  Nigra,  Sir  Julian  Paunce- 
fote, honorary  presidents  of  the  Third  Commission;  Messrs.  Asser,  Chevalier  Descamps, 
Baron  d'Estournelles  de  Constant,  Holls,  Lammasch,  Martens,  Odier,  Doctor  Zorn, 
members  of  the  committee  of  examination. 

2  See  the  minutes  of  that  meeting. 
•Annex  1. 

*  Annex  2,  A  and  B. 

*  Annex  3. 
"Annex  4. 


687 


[2] 

SECOND   MEETING 

MAY  29,  18991 


Mr.  Leon  Bourgeois  presiding. 

The  minutes  of  the  last  meeting  are  adopted. 

Chevalier  Descamps  presents  the  proof  of  the  general  abstract  of  clauses  of 
mediation  and  arbitration  involving  Powers  represented  at  the  Peace  Conference  — 
an  abstract  which  he  agreed  to  make  at  the  request  of  the  Third  Commission.^ 

Mr.  Leon  Bourgeois,  after  having  expressed  the  thanks  of  the  Committee 
to  Chevalier  Descamps,  gives  him  the  floor. 

Chevalier  Descamps  speaks  as  follows : 

Upon  the  initiative  of  an  august  person  there  has  been  put  before  civiHzed 
States  for  their  consideration  the  question  of  the  strengthening  of  international 
peace.  The  Powers  represented  at  the  Hague  Conference  are  called  upon,  in  a 
spirit  of  mutual  good-will,  to  seek  the  most  suitable  means  to  ensure  the  accom- 
plishment of  this  great  purpose.  There  is  no  more  magnanimous  purpose  than 
that  of  guaranteeing  to  peoples  "  the  benefits  of  a  real  and  lasting  peace,"  and  it  is 
a  task,  noble  above  all  others,  for  States  to  give  through  international  agreements 
"  solemn  avowal  of  the  principles  of  equity  and  law,  upon  which  reposes  the 
security  of  States  and  the  welfare  of  peoples." 

The  provisions  which  we  are  to  prepare  are  directly  concerned  with  this 
purpose. 

While  the  Second  Commission  has  for  its  mission,  in  formulating  the  laws 
of  war,  to  determine  measures  suitable  to  correct  the  abuses  and  alleviate  the 
rigors  of  armed  conflicts,  we  have  for  our  immediate  object  a  search  for  institu- 
tions and  fundamental  guaranties  of  such  a  character  as  to  be  powerful  safe- 
guards for,  or  to  bring  about  the  prompt  restoration  of,  the  peaceful  course  of  the 
life  of  nations. 

From  this  point  of  view  the  institution  of  good  offices  and  mediation,  inter- 
national commissions  of  inquiry,  and  arbitration  claim  our  attention. 

The  remarkable  draft  presented  by  the  Russian  delegation,  the  proposal  made 
by  the  first  delegate  of  Great  Britain,  that  which  the  delegation  of  the  United 
States  announces  that  it  has  presented,  the  amendments  already  introduced  by  the 
first  delegate  of  Italy,  all  these  constitute  just  so  many  manifestations  of  the 
desire  of  Powers  to  reach  conclusions  upon  this  subject  worthy  of  our  age  of 
progress  and  of  great  value  to  the  general  welfare  of  humanity  as  well  as  to  the 
individual  welfare  of  the  various  members  of  the  international  community. 

^  House  in  the  Wood.  Present :  Their  Excellencies  Count  Nigra,  Sir  Julian  Paunce- 
FOTE,  honorary  presidents  of  the  Third  Commission;  Chevalier  Descamps,  president  and  re- 
porter of  the  committee  of  examination;  Messrs.  Asser,  Baron  d'Estournelles  de  Constant, 
HoLLs,  Lammasch,  Martens,  Odier,  Doctor  Zorn,  members  of  the  committee  of  examination. 

2  Annex  5. 

688 


SECOND  MEETING,  MAY  29,  1899  689 

The  discussions  which  are  about  to  begin  in  the  committee  of  examination 
will  undoubtedly  show  us  that  these  propositions,  born  of  a  common  desire  to  serve 
the  interests  of  peace  in  the  modern  world,  can  be  brought  into  agreement  in  some 
better  form  where  their  representative  tendencies  will  be  blended  together  so  far 
as  they  possess  new  ideas  that  are  legitimate,  beneficial,  and  practically  capable  of 
realization.  It  will  be  the  highest  task  of  the  President  to  promote  this  happy 
blending  of  ideas. 

At  the  outset  of  our  labors,  it  is  not  without  interest  to  proceed  to  a  rapid 
examination  of  all  of  the  provisions  which  are  submitted  to  us  relating  to  the  first 
object  of  our  dehberations :  good  offices  and  mediation.  Such  an  examination 
seems  to  be  the  most  natural  and  practical  introduction  to  our  deliberations.  We 
shall  take  as  a  basis  for  our  observations  the  first  six  articles  of  the  Russian  draft 
communicated  to  the  members  of  the  Commission  under  this  title :  "  OutHnes 
for  the  preparation  of  a  draft  Convention  to  be  concluded  between  Powers  taking 
part  in  the  Hague  Conference." 

The  first  article  covers  in  a  general  way  the  peaceful  settlement  of  interna- 
tional disputes. 

The  Powers  there  declare  that  they  have  agreed  to  use  their  best  efforts  to 
[3]  bring  about,  by  peaceful  means,  the  settlement  of  disputes  which  may  arise 
between  them.  Perhaps  it  will  be  proper,  considering  the  general  character 
of  this  article,  to  substitute  for  the  word  "  dispute  "  the  generic  term  "  differ- 
ence." Perhaps  the  course  of  the  discussion  will  lead  us  to  take  this  article  out 
from  under  the  title  "  Good  offices  and  mediation  "  and  give  it  a  position  suitable 
to  it  in  a  collection  of  provisions  relating  to  the  organization  of  peace.  Provi- 
sionally, this  article  might  be  adopted  in  its  present  form.  In  the  main,  it  states 
only  the  firm  determination  of  the  Powers  to  make  way  for  pacific  means,  as 
against  violent  means,  for  the  termination  of  disputes  between  States,  and  the 
sincere  desire  which  moves  them  to  endeavor  to  realize,  in  the  world  of  facts, 
international  pacification.  Looked  at  from  this  point  of  view  it  seems  to  be  a 
translation  into  the  language  of  the  law  of  nations  of  this  remarkable  passage 
from  the  message  of  His  Majesty  the  Emperor  of  Russia:  "  The  preservation  of 
peace  has  been  put  forward  as  the  object  of  international  policy." 

So  far  as  Articles  2  to  6  of  the  Russian  draft  are  concerned,  the  various  points 
to  be  successively  studied  appear  in  the  following  order : 

First,  we  must  examine  the  question  of  recourse  to  mediation  by  the  parties 
at  variance  before  other  action. 

Secondly,  we  must  consider  the  matter  of  the  offer  of  mediation  by  Powers 
strangers  to  the  difference. 

Finally,  we  must  direct  our  attention  to  the  three  matters  common  to  these 
two  kinds  of  mediation:  the  general  role  of  the  mediator,  the  time  when  the 
mediator's  functions  cease,  and  the  essential  character  of  these  functions.  These 
matters  will  no  doubt  lead  us  to  place  Article  5  of  the  Russian  draft  immediately 
after  Article  2  and  consequently  change  the  arrangement  of  the  other  articles. 

Touching  the  first  and  very  important  question,  that  of  recourse  to  media- 
tion by  the  parties  at  variance,  before  other  action,  I  observe  that  Article  2  aims 
at  three  clearly  distinct  points. 

It  sets  forth  first  the  case  in  which  we  intend  to  formulate  a  new  rule  of 
international  law,  and  it  describes  this  case  in  these  words :  "  in  case  of  serious 
disagreement,  before  an  appeal  to  arms."  To  my  mind  it  would  be  possible  to 
adopt  a  more  precise  terminology  to  describe  the  cases  in  question  and  to  make 


690  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

the  terminology  the  same  in  the  later  articles  bearing  on  the  same  case,  for  in- 
stance Article  5. 

Article  2  then  contains  the  general  pledge  of  such  recourse  before  other 
action;  that  is  a  considerable  step  in  advance  when  compared  with  the  present 
situation. 

Article  2  finally  reproduces  the  modifications  contained  in  the  voeu  expressed 
in  the  thirty-third  Protocol  of  the  Congress  of  Paris  of  1856:  "  so  far  as  circum- 
stances admit."  Suppose  that  we  adopt  a  similar  modification,  there  will  be  then 
opportunity  to  examine  into  the  question  as  to  whether  the  phraseology  is  satisfac- 
tory and  whether,  by  providing  the  exception,  it  sufficiently  protects  the  rule. 

The  second  question  to  be  studied  by  us,  that  of  the  offer  of  mediation  by 
Powers  strangers  to  the  dispute,  is  itself  of  capital  importance:  great  progress 
may  also  be  made  on  this  point.  One  of  the  principal  objects  of  the  present 
Conference  being  to  prevent  armed  conflicts,  the  search  for  methods  of  making 
mediation  easier  and  more  frequent  cannot  fail  to  have  a  considerable  place  in 
our  deliberations.  It  is  of  great  importance,  in  the  general  law  of  nations,  to 
vest  with  the  character  of  a  useful  institution  the  offer  of  mediation,  appHed  when 
circumstances  are  favorable,  to  disputes  in  which  a  breach  of  pacific  relations  seems 
to  be  threatened,  without  also  distinguishing  —  as  does  the  Russian  draft,  wrongly 
it  seems  to  us  —  between  disputes  of  a  political  and  a  legal  character.  In  fact  it 
is  not  the  political  or  other  character  of  the  serious  disagreement  but  its  imme- 
diate relation  to  the  breach  of  pacific  relations  which  can  in  certain  respects  justify 
the  offer  of  mediation.  In  this  connection  it  seems  to  us  that  Article  5  of  the 
Russian  draft  must  be  fundamentally  revised. 

Several  revisions  as  to  form  seem  equally  necessary,  not  only  in  that  article 
which  describes  the  role  of  the  mediator  in  a  different  manner  from  Article  3, 
but  in  the  following  articles.  That  is,  however,  a  secondary  matter.  The  im- 
portant thing  is  to  make  a  vigorous  effort  and  to  effect  some  marked  progress  in 
the  double  pathway  of  recourse  to  mediation  by  the  parties  in  dispute  on  the  one 
hand,  and  the  offer  of  mediation  by  Powers  strangers  to  the  dispute,  on  the  other. 

Good  offices  and  mediation  have  certainly  not  failed  to  exercise  a  happy  influ- 
ence at  times  in  the  past,  and  many  facts  might  be  recalled  here  in  support  of  this 
statement.  They  do  not  possess,  however,  the  character  which  belongs  to  them 
in  a  society  composed  of  civilized  States  fundamentally  interdependent  one  upon 
the  other.  It  is  possible,  it  is  wise,  it  is  entirely  worthy  of  modern  States,  in 
taking  necessary  precautions  against  possible  abuses,  to  create  these  institutions 
as  powerful  factors  working  for  the  maintenance  of  international  peace.  It  is  to 
the  realization  of  this  work  that  we  shall  consecrate  our  first  efforts  by  applying 
ourselves  to  the  improvement  of  the  principles  furnished  to  us  by  the  Russian 

draft. 
[4]  Mr.  Martens  replies  with  this  general  observation : 

The  Russian  proposal  is  especially  of  a  practical  character:  it  cannot  escape 
criticism  either  from  a  scientific  viewpoint  or  from  the  point  of  view  of  phrase- 
ology, but  it  is  the  result  of  international  experience. 

Mr.  Bourgeois  replies  that  such  is  the  estimation  in  which  the  committee 
held  this  work,  and  Chevalier  Descamps  is  anxious  to  confirm  this  statement,  at 
Ihe  same  time  maintaining  that  his  criticisms  have  a  sound  basis. 

The  committee  passes  to  the  reading  of  the  articles. 


SECOND  MEETING,  MAY  29,  1899  691 

Examination,  upon  First  Reading,  of  the  Russian  Draft  Relating  to 
"  Mediation  "  and  "  Good  Offices  "  ^ 

Article  1 

(It  is  understood,  upon  the  motion  of  His  Excellency  Count  Nigra,  that  this 
article  will  be  reserved  for  a  place  at  the  head  of  the  Convention  to  be  adopted.) 

With  the  purpose  of  obviating,  as  far  as  possible,  recourse  to  force  in  international 
relations,  the  signatory  Powers  have  agreed  to  use  their  best  efforts  to  bring  about  by  pacific 
means  the  settlement  of  disputes  which  may  arise  between  them. 

This  article  is  adopted,  with  the  reservation  above  indicated  except  for  the 
substitution  of  the  word  "  differences  "  for  "  disputes." 

Article  2 

Consequently,  the  signatory  Powers  have  decided  that,  in  case  of  serious  disagreement 
or  dispute,  before  an  appeal  to  arms,  they  will  have  recourse,  so  far  as  circumstances  admit, 
to  the  good  offices  or  mediation  of  one  or  more  friendly  Powers. 

Mr.  Asser  asks  if  there  is  a  reason  for  retaining  these  words :  "  so  far  as  cir- 
cumstances admit." 

He  adds  that  this  clause  which  was  included  in  the  Act  of  Paris  of  1856  was 
omitted  in  the  General  Act  of  Berlin  of  1885.  To  restore  it  would  be  to  take  a 
step  backward. 

His  Excellency  Count  Nigra  supports  this  statement  and  says  that  the  inser- 
tion of  this  clause  would  in  some  measure  destroy  the  article. 

The  President  observes  that  the  Act  of  Berlin  is  a  special  act  for  a  definite 
purpose;  the  Powers  in  drafting  that  act  desired  that  serious  disputes,  which 
were  localized  in  Africa,  so  far  as  the  subject  matter  thereof  was  concerned, 
should  not  degenerate  into  a  casus  belli. 

If  to-day  a  general  scope  be  given  to  this  special  act  we  cannot  determine 
in  advance  what  will  be  the  extent  of  its  application. 

Doubtless  the  Powers  might  bind  themselves  to  ensure  such  application,  but 
what  would  be  the  sanction  therefor? 

Is  it  not  to  be  feared  that  the  promises  thus  made  will  be  evaded  or  violated, 
and  this  would  then  be  a  serious  blow  to  the  Convention  and  even  to  the  authority 
of  the  signatory  Powers?  Would  it  not  be  better  to  retain  the  reservation  pro- 
vided in  the  Russian  proposition  ? 

Mr.  Asser  insists  upon  his  observation  and  proposes  that  the  reservation  be 
stricken  out. 

Chevalier  Descamps  observes  that  the  reservation  in  fact  dates  from  1856. 
He  adds  that  so  far  as  dangers  to  be  feared  are  concerned  we  would  not  exag- 
gerate anything;  the  mediator  is  not  vested  with  any  powers  until  both  of  the 
parties  have  consented  thereto. 

The  words  "  so  far  as  circumstances  admit "  might  suggest  too  arbitrary  an 
interpretation  and  would  tend  to  cause  the  rule  to  be  swallowed  by  the  exception. 

Mr.  Martens  does  not  attach  great  importance  to  this  omission,  because  in 
fact,  whether  it  is  so  stated  or  not,  Powers  will  not  have  recourse  to  good  offices 
unless  circumstances  permit. 

1  See  annexes  1  and  8. 


692  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

Mr.  Lammasch  makes  a  compromise  motion :  "  unless  exceptional  circum- 
stances render  this  method  manifestly  impossible,"  in  order  to  show  that  media- 
tion should  be  the  rule  and  recourse  to  arms  the  exception. 

Chevalier  Descamps  insists  and  develops  in  support  of  his  opinion  argu- 
ments drawn  from  the  modern  character  of  war  and  the  common  interests  which 
bind  civilized  States  together. 

Dr.  Zorn  is  of  the  opinion  that  the  Russian  text  should  be  retained  in  order 
to  leave  Powers  entirely  free  in  the  exercise  of  their  judgment.     The  new  draft 

does  not  seem  acceptable  to  him. 
[5]   Mr.  Asser  insists  upon  his  motion,  but  in  second  place  would  give  preference 

to  the  draft  of  Mr.  Lammasch  over  the  provision  of  the  Russian  draft. 

His  Excellency  Sir  Julian  Pauncefote  and  Mr.  Odier  support  the  argu- 
ments of  Chevalier  Descamps. 

The  President  sums  up  the  proposals  in  question:  no  one  asking  for  the 
preservation  of  the  old  text,  the  committee  must  pronounce  itself  between : 

1.  The  proposal  of  Mr.  Lammasch. 

2.  The  simple  elimination  of  the  reservation  ( )  proposal  of  Mr.  Asser. 

For  the  simple  elimination:   Pauncefote,  Nigra,  Descamps,  Asser,  Odier 

(5  votes). 

For  the  draft  of  Mr.  Lammasch  :  Bourgeois,  Holls,  Zorn,  Lammasch  (4 
votes). 

Abstention:  Martens. 

Baron  d'Estournelles  did  not  take  part  in  the  vote,  each  Power  having  but 
one  vote. 

The  omission  of  the  words  "  so  far  as  circumstances  admit "  is  agreed  to,  but 
with  the  reservation  that  the  matter  may  be  discussed  again  later.^ 

Article  2  is  therefore  adopted  except  for  the  modifications  above  indicated 
and  the  substitution  of  the  word  "  agree  "  for  the  words  "  have  agreed." 

Article  3 

Chevalier  Descamps  reads  this  article : 

In  the  case  of  mediation  accepted  spontaneously  by  the  litigant  States  the  object  of 
the  Government  acting  as  mediator  is  to  reconcile  the  opposing  claims  and  appease  the  feel- 
ings of  resentment  which  may  have  arisen  between  these  States. 

Chevalier  Descamps  proposes  that  these  words  at  the  beginning  of  the  article 
be  stricken  out :  "  In  the  case  of  mediation  accepted  spontaneously  by  the  litigant 
States." 

Then  he  proposes  to  substitute  for  the  words  "  the  object  of  the  Government 
acting  as  mediator  "  these  "  the  part  of  the  mediator,"  and  to  phrase  the  close  of 
the  article  thus :  "  between  dissident  States." 

The  complete  text  of  Article  3  would  therefore  be  worded  as  follows :  "  The 
part  of  the  mediator  is  to  reconcile  the  opposing  claims  and  appease  the  feelings 
of  resentment  which  may  have  arisen  between  the  dissident  States."  This  draft 
of  Article  3  is  adopted. 

1  It  is  understood  once  for  all  that  the  committee  of  examination  does  not  decide 
finally  upon  any  text;  it  limits  itself  to  the  preparation  of  texts  which  will  be  submitted  by 
it  to  the  Third  Commission  and  which  may  be  revised  until  the  end,  even  if  it  be  only  to 
make  them  agree  with  others.    This  remark  was  made  at  most  of  the  meetings. 


SECOND  MEETING,  MAY  29,  1899  693 

Article  4 

Chevalier  Descamps  proposes  to  throw  Article  4  to  the  end  of  the  title  as  a 
matter  of  orderly  arrangement. 

Agreed  to. 

As  for  the  phraseology  of  this  article  Mr.  Asset  observes  that  the  words 
"  when  the  settlement  proposed  by  it  or  the  bases  of  a  friendly  settlement  which 
it  may  have  suggested  are  not  accepted/'  lack  precision. 

Chevalier  Descamps  supports  this  statement  and  after  a  general  discussion 
the  following  draft  suggested  by  the  President  is  adopted :  "  The  functions  of 
the  mediator  are  at  an  end  when  once  it  is  declared,  either  by  one  of  the  parties 
to  the  dispute,  or  by  the  mediator  himself,  that  the  settlement  or  the  bases  of  a 
friendly  settlement  proposed  by  him  are  not  accepted." 

Consequently  the  above  draft  of  Article  4,  which  will  be  placed  at  the  end  of 
the  title,  is  adopted.  "" 

Article  5 

The  Powers  consider  it  useful  in  case  of  serious  disagreement  or  conflict  between 
[6]   civilized  States  concerning  questions  of  a  political  nature,  independently  of  the  recourse 

which  these  Powers  might  have  to  the  good  offices  and  mediation  of  Powers  not  in- 
volved in  the  dispute,  for  the  latter,  on  their  own  initiative,  and  so  far  as  circumstances  will 
allow,  to  offer  their  good  offices  or  their  mediation  in  order  to  smooth  away  the  difficulty 
which  has  arisen,  by  proposing  a  friendly  settlement,  which  without  affecting  the  interest  of 
other  States,  might  be  of  such  a  nature  as  to  reconcile  in  the  best  way  possible  the  interests 
of  the  litigant  parties. 

After  a  general  exchange  of  views,  the  text  of  Article  5  is  redrafted  as 
shown  below  (Article  3)  and  the  following  arrangement  is  adopted: 

New  Arrangement 

Article  1.  With  the  purpose  of  obviating,  as  far  as  possible,  recourse 
to  force  in  international  relations,  the  signatory  Powers  have  agreed  to  use 
their  best  efforts  to  bring  about  by  pacific  means  the  settlement  of  differences 
which  may  arise  between  them. 

Article  2.  Consequently,  the  signatory  Powers  decide  that,  in  case  of 
serious  disagreement  or  dispute,  before  an  appeal  to  arms,  they  will  have 
recourse  to  the  good  offices  or  mediation  of  one  or  more  friendly  Powers. 
(Text  to  be  discussed  again.) 

Article  3  (originally  Article  5).  The  signatory  Powers  consider  it 
useful  in  case  of  serious  disagreement  or  conflict  between  civilized  States 
(omit  words:  "concerning  questions  of  a  political  nature")  independently 
of  the  recourse  which  these  Powers  may  have  to  the  good  offices  and 
mediation  of  Powers  not  involved  in  the  dispute,  for  the  latter,  on  their  own 
initiative  and  so  far  as  circumstances  allow,  to  offer  their  good  offices  or 
their  mediation  to  the  dissident  States. 

The  text  of  this  article  will  be  again  modified  later  by  an  amendment  offered 
by  Count  Nigra.^ 

Article  4  (originally  Article  3).  The  part  of  the  mediator  consists 
in  the  reconciliation  of  the  opposing  claims  and  in  appeasing  the  feelings  of 
resentment  which  may  have  arisen  between  the  dissident  States. 

^  Annex  4;  see  infra,  Sections  1  and  2  of  Article  3. 


694  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

Article  5  (originally  Article  4).  The  functions  of  the  mediator  are 
at  an  end  when  once  it  is  declared,  either  by  one  of  the  parties  to  the  dispute 
or  by  the  mediator  himself,  that  the  settlement  or  the  bases  of  a  friendly 
settlement  proposed  by  him  are  not  accepted. 

Article  6.  Good  offices  or  mediation  undertaken  either  at  the  request 
of  the  litigant  parties  or  on  the  initiative  of  Powers  strangers  to  the  dispute 
have  exclusively  the  character  of  friendly  advice. 

This  arrangement  having  been  adopted,  His  Excellency  Count  Nigra  sets 
forth  the  scope  of  Article  3  of  the  amendment  which  he  presented  at  the  last 
meeting. 

A  general  discussion  takes  place  upon  this  subject  after  which  the  committee 
adopts  in  principle  the  amendment  of  his  Excellency  Count  Nigra,  and  adopts  the 
following  phraseology  of  Article  3 : 

Section  1.  Independently  of  this  recourse,  the  signatory  Powers  deem  it 
expedient  that  one  or  more  Powers,  strangers  to  the  dispute,  should,  on  their 
own  initiative,  and  as  far  as  circumstances  may  allow,  offer  their  good  offices 
or  mediation  to  the  States  in  dispute. 

Section  2.  Powers  strangers  to  the  dispute  have  the  right  to  offer  good 
offices  or  mediation,  even  during  the  course  of  hostilities.  The  exercise  of 
this  right  can  never  be  regarded  as  an  unfriendly  act.^ 

Mr.  Hells  asks  permission  to  speak  for  the  purpose  of  presenting  a  propo- 
sition for  special  mediation.^ 

After  an  exchange  of  views,  the  committee  decides  that  this  proposition  shall 
be  printed  and  distributed.^ 

The  President  consults  the  committee  with  regard  to  its  order  of  business 
and  proposes  to  hold  the  third  meeting  on  Wednesday,  May  31,  at  2  o'clock,  to 
examine  the  draft  of  Mr.  Holls  and  to  continue  the  examination  of  the  proposi- 
tion of  Mr.  Martens. 

The  meeting  adjourns. 

1  See  annex  8. 

2  See  annex  6. 
2  Annex  6. 


THIRD    MEETING 


MAY  31,  1899 


Mr,  Leon  Bourgeois  presiding. 

The  minutes  of  the  last  meeting  give  rise  to  the  following  discussion : 

Before  taking  up  the  regular  order  of  business,  Dr.  Zorn  announces  that  he 
will  propose  at  the  next  plenary  session  to  restore  the  words,  stricken  out  upon 
the  motion  of  Mr.  Asser,  in  Article  2:  "so  far  as  circumstances  admit"  or  at 
least  to  adopt  the  text  proposed  by  Mr.  Lammasch,  this  reservation  seeming 
absolutely  necessary  to  him,  and  the  discussion  upon  that  point  having  been  left 
•open. 

Mr.  Martens  asks  that  it  be  stated  that  if  he  abstained  from  voting  when  the 
vote  was  taken  at  the  last  meeting  (Article  2),  with  regard  to  the  suppression  of 
the  clause  in  question, —  while  still  naturally  favoring  the  text  of  the  Russian 
delegation  —  it  was  only  for  the  purpose  of  assisting  in  reaching  an  agreement. 

His  Excellency  Sir  Julian  Pauncefote  observes  that  of  course  the  delibera- 
tions and  work  of  the  committee  are  for  the  purpose  of  simpHfying  those  of  the 
Third  Commission,  but  without  in  any  way  prejudicing  the  decisions  of  that  Com- 
mission, and  furthermore  without  binding  the  interested  Governments. 

The  committee  unanimously  favors  this  point  of  view;  it  considers  that  its 
mission  is  simply  to  prepare  the  work  for  the  Commission,  and  to  give  it  advice, 
but  without  having  the  power  itself  to  reach  any  decision. 

His  Excellency  Sir  Julian  Pauncefote  asks  if  the  recourse  provided  for  in 
Article  2  should  be  considered  as  obligatory. 

The  President  remarks  that  this  amounts  to  asking  for  the  correction  of  the 
vote  taken  at  the  last  meeting  upon  Article  2.     Is  this  the  view  of  the  committee? 

Mr.  Martens  asks  that  a  new  vote  be  taken. 

Chevalier  Descamps  believes  that  if  necessary  the  three  texts  could  be  sub- 
mitted to  the  Commission,  leaving  it  to  make  the  choice. 

Mr.  Odier  thinks  that  the  Commission  expects  from  the  committee  not  de- 
cisions, but  at  least  clear  advice  and  propositions  in  definite  form:  consequently, 
he  asks  that  the  committee  vote  again,  stating  its  view. 

Chevalier  Descamps  seconds  this  request. 

The  President  then  puts  the  proposition  to  vote  in  the  following  terms: 
"  In  view  of  the  preceding  remarks,  all  the  members  of  the  committee  are  agreed 
that  as  a  compromise  measure  we  might  adopt  the  terms  of  the  amendment  of 
Mr.  Lammasch  ' unless  exceptional  circumstances  are  opposed  to  it'  although  the 

1  Hall  of  the  Truce.  Present :  Their  Excellencies  Sir  Julian  Pauncefote,  Count 
Nigra,  honorary  presidents  of  the  Third  Commission;  Chevalier  Descamps,  president  and 
reporter;  Messrs.  Asser,  Baron  d'Estournelles  de  Constant,  Holls,  Lammasch,  Martens, 
'Odier,  Doctor  Zorn,  members  of  the  committee  of  examination. 

695 


696  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

omission  of  the  words  '  so  far  as  circumtsances  admit '  was  decided  upon  at  the 
last  meeting  up  to  the  time  of  making  a  new  arrangement." 

This  reservation  was  unanimously  adopted  except  so  far  as  future  modifica- 
tions might  be  made  in  the  work  of  editing  the  text. 

A  general  discussion  then  occurs  concerning  Article  5  of  the  amendment  of 
his  Excellency  Count  Nigra.^  This  amendment  is  adopted  in  principle.  It  will 
bear  the  number  7  after  the  six  articles  of  the  Russian  draft  already  adopted. 

As  for  the  text  it  will  be  as  follows : 

The  acceptance  of  mediation  cannot,  unless  there  be  an  agreement  to 
the  contrary,  have  the  effect  of  interrupting,  delaying,  or  hindering  mobiliza- 
tion or  other  measures  of  preparation ;  if  it  takes  place  after  the  commence- 
ment of  hostilities,  the  military  operations  in  progress  are  not  interrupted, 
unless  there  be  an  agreement  to  the  contrary. 


[8] 


Discussion  of  the  American  Draft  for  **  Special  Mediation "  ^ 


The  committee  passes  to  the  examination  of  the  proposal  of  Mr.  Holls  con- 
cerning a  special  mediation. 

Mr.  Holls  reads  the  following  note : 

Permit  me  to  explain  briefly  the  fundamental  idea  upon  which  the  proposition 
now  submitted  to  you  is  based.  It  was  and  is,  first  and  foremost,  the  undeniable 
fact,  that  there  are  and  always  will  be  differences  between  nations  and  between 
Governments  which  neither  arbitration  nor  mediation,  according  to  the  usual 
acceptance  of  the  term,  is  calculated  to  prevent.  Nevertheless,  it  would  be 
wrong  to  say  that  every  such  controversy  must  necessarily  end  in  hostilities,  and 
although  in  a  case  where  neither  arbitration  nor  mediation  seems  to  be  a  possible 
remedy  the  chances  of  avoiding  a  conflict  may  be  characterized  as  minimal,  it 
is  none  the  less  true  that  in  the  interests  of  peace  and  in  the  light  of  experience 
the  attempt  should  be  made,  especially  if  the  means  proposed  are  of  a  nature  to  be 
useful  even  in  case  peace  should  after  all  be  broken. 

1  beg  most  respectfully  to  observe  that  the  project  which  is  submitted  to  you 
affords  this  means. 

It  is  an  obvious  truth  which  has  found  expression  in  private  life  by  the  insti- 
tution of  seconds  or  witnesses,  in  affairs  of  honor,  that  at  the  eve  of  what  may  be 
a  fatal  encounter,  it  is  best  to  leave  the  discussion  of  the  points  in  controversy  to 
third  parties  rather  than  to  the  principals  themselves.  The  second  enjoys  the 
entire  confidence  of  his  friend,  whose  interests  he  agrees  to  do  his  best  in  defend^ 
ing,  until  the  entire  affair  may  be  settled;  yet  nevertheless,  not  being  directly 
interested  in  the  controversy,  he  preserves  at  all  times  the  liberty  of  a  mutual 
friend,  or  an  arbitrator. 

In  the  second  place,  I  would  respectfully  submit  that  every  institution  or 
custom  which  may  receive  the  approval  of  an  assembly  like  this,  having  for  its 
object  the  introduction  of  a  new  element  of  deliberation  into  the  relations  be- 
tween States  when  the  latter  have  become  strained,  certainly  marks  so  much  prog- 
ress, and  may  conceivably  be  of  vital  importance  at  a  critical  moment. 

As  a  matter  of  fact,  and  even  with  the  new  guaranties  of  peace  which  may  be 

^  See  annex  4. 

2  See  annex  6. 


THIRD  MEETING,  MAY  31,  1899  697 

offered  by  the  international  court  and  the  most  solemn  and  formal  declarations  in 
favor  of  mediation  and  good  offices,  the  negotiations  between  two  States  in  con- 
troversy may  arrive  at  a  point  when  it  becomes  necessary  for  the  representative 
of  the  one  to  say  to  the  representative  of  the  other,  "  One  more  step  means  war." 
If  the  proposition  which  is  hereby  submitted  to  you  should  be  adopted,  it  will  be 
possible  to  substitute  for  this  formula  another,  "  One  step  further  and  we  shall  be 
obliged  to  appoint  a  second."  These  words  surely  will  have  a  grave  significance, 
and  yet  it  would  seem  that  they  will  have,  besides  other  advantages,  that  of  pro- 
ducing all  the  good  effects  of  a  threat  of  war  without  having  the  aggressive  char- 
acter of  a  menace,  pure  and  simple,  or  of  an  ultimatum.  The  amour  propre  of 
the  two  parties  will  remain  inviolate,  and  yet  all  will  have  been  said  which  must 
be  said. 

To  give  to  this  idea  all  of  its  force  it  is  necessary  that  the  question  in  con- 
troversy should  be  referred  during  a  given  time  exclusively  to  the  jurisdiction  of 
the  mediating  Powers. 

At  the  same  time  the  word  "  exclusively  "  need  not  necessarily  be  taken  in 
the  literal  sense. 

The  mediating  Powers  will  represent  third  parties,  and  this  clause  will  have 
for  its  principal  effect  the  cessation  of  all  direct  communication  between  the  inter- 
ested parties  on  the  subject  of  the  question  in  dispute ;  further  diplomatic  relations 
continue  undisturbed,  with  this  one  restriction. 

The  mediating  Powers  will  remain  free,  of  course,  to  enter  into  negotiations 
on  the  subject  of  the  controversy  with  other  Powers  if  they  shall  judge  it  to  be 
useful,  and  it  may  often  result  in  simple  mediation,  possibly  ultimately  in  arbi- 
tration. 

Finally,  and  this  point  is  by  no  means  the  least  important,  it  is  recommended 
on  account  of  its  utility  as  an  agency  for  peace  even  in  time  of  war.  It  is  not 
necessary  to  enlarge  upon  this  idea, —  it  is  admitted  that  there  are  many  circum- 
stances where  the  intervention  of  mediatory  Powers  with  recognized  authority 
would  suffice  to  convince  one  of  the  belligerent  States,  if  not  both,  that  satisfac- 
tion has  been  obtained,  and  thus  to  save  many  lives  and  many  sufferings. 

In  submitting  this  proposition  I  am  supported  by  my  American  colleagues  of 
the  Third  Commission,  and  I  felicitate  myself  upon  the  fact  that  it  has  the  privi- 
lege of  being  submitted  to  the  examination  of  the  most  eminent  of  diplomats  and 
statesmen,  and  of  savants  whose  reputation  is  world-wide.     We  have  the 
[9]  conviction  that  if  you  will  give  to  our  idea  your  sanction,  it  will  surely 
result,  sooner  or  later,  in  a  real  gain  for  the  cause  of  peace. 
A  general  discussion  takes  place  concerning  the  principle  of  this  proposal. 
Several  members  are  of  the  opinion  that  the  Holls  motion,  which  is  a  new  and 
interesting  idea,  certainly  presents  some  advantages  and  should  be  recommended 
to  the  Commission  —  however  they  think  that  if  it  is  adopted  it  should  be  inserted 
not  as  an  amendment  to  the  Russian  draft  but  as  a  special  title. 

Mr.  Holls  indicates  one  of  the  advantages  of  his  proposal :  it  may  be  applied 
at  any  time  either  before  or  after  the  opening  of  hostilities,  being  an  invitation  to 
the  seconds  not  to  refrain  from  intervening,  but,  on  the  contrary,  imposing  upon 
them  a  sort  of  moral  obligation  to  intervene,  without  being  discouraged  there- 
from at  any  time. 

Mr.  Martens  agrees  with  several  of  his  colleagues  in  asking  that  this  pro- 
posal, if  it  be  adopted,  be  inserted  separately  from  the  draft,  because  of  its  volun- 
tary and  special  character. 


698  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

The  President  asks  if  the  committee  is  agreed  in  principle  to  recommend  to 
the  Commission  the  study  of  Mr.  Holls'  proposition  and  to  decide  that  it  should 
be  inserted  as  a  separate  title  in  the  draft. 

The  committee  unanimously  replies  aye. 

The  committee  passes  to  a  first  examination  of  the  articles  of  the  HollS- 
proposition. 

Section  1.  The  signatory  Powers  are  agreed  in  recommending  the  application,  whea 
circumstances  allow,  of  special  mediation  in  the  following  form: 

Adopted. 

Section  2.     Adopted  in  the  following  form : 

In  case  of  a  serious  difference  threatening  the  peace,  the  States  in  dispute  choose  re- 
spectively a  Power  to  which  they  entrust  the  mission  of  entering  into  direct  communication 
with  the  Power  chosen  by  the  other  party,  with  the  object  of  preventing  the  rupture  of 
pacific  relations. 

Section  3.     Adopted  in  the  following  form : 

The  question  in  dispute  is  regarded  as  referred  exclusively  to  these  Powers.  They 
must  use  their  best  efforts  to  settle  the  difference. 

Section  4.     Adopted  in  the  following  form : 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are  charged  with  the 
joint  task  of  taking  advantage  of  any  opportunity  to  restore  peace. 

Before  adjourning  the  committee  notes  upon  its  records  the  more  detailed 
proposition  which  his  Excellency  Sir  Julian  Pauncefote  has  had  printed  to  set 
forth  his  plan  for  instituting  a  permanent  tribunal  of  international  arbitration^ 
which  he  had  given  to  the  Third  Commission  at  a  plenary  session.  This  docu- 
ment will  be  printed  and  distributed.^ 

Mr.  Holls,  on  behalf  of  the  delegation  of  the  United  States  of  America,, 
reads : 

1.  The  following  memorandum: 

Without  insisting  upon  the  identical  form  of  their  draft,  the  delegates 
of  the  United  States  are  ready  to  modify  the  propositions  thus  far  sub- 
mitted to  the  Conference,  so  that  the  latter  may  finally  contain  all  that  is 
essential  in  their  own  plan.  It  seems  to  them  that  it  will  not  be  difficult  — 
after  the  numerous  propositions  which  may  be  made  upon  the  subject  of 
mediation,  international  inquiries,  and  special  arbitration  —  to  add  a  plan  for 
a  permanent  court  of  arbitration  which  will  embody  the  essential  features  of 
the  American  draft. 

2.  Annex  7  (organization  of  the  tribunal). 

The  committee  decides  that  it  is  time  to  advise  the  Third  Commission  as  soon 
as  possible  of  the  progress  in  its  work,  and,  upon  the  motion  of  the  President, 
it  is  agreed  that  this  Commission  shall  be  called  together  on  Monday,  June  5,  at 
2 :30  at  the  House  in  the  Wood.^ 

Order  of  business  for  this  meeting  of  the  Third  Commission. 

1  Annex  2. 

2  See  minutes  of  that  meeting. 


THIRD  MEETING,  MAY  31,  1899  699 

1.  Oral  report  of  Chevalier  Descamps  upon  the  work  of  the  committee  of 
examination.^ 

2.  Study  of  the  first  ten  articles  of  the  Russian  draft  (mediation  and  arbitra- 
tion) and  of  the  modifications  suggested  by  the  committee,  following  the  annexed 
text.'' 

3.  Study  of  an  additional  article  of  his  Excellency  Count  Nigra  also  attached 
hereto  (concerning  the  friendly  character  of  mediation  and  good  offices).^ 

4.  Study  of  a  complementary  provision  suggested  by  Mr.  Holls  relating  to 
the  establishment  of  a  system  of  special  mediation,  provision  also  attached 
hereto.* 

5.  Communication  of  the  plans  worked  out,  on  the  one  hand,  by  his  Excel- 
lency Sir  Julian  Pauncefote,  and,  on  the  other  hand,  by  the  delegation  of  the 
United  States  of  America  for  the  establishment  of  a  permanent  tribunal  of  arbi- 
tration.® 

(These  drafts  have  been  printed  and  distributed  to  the  Commission.) 
The  meeting  adjourns. 

1  See  the  minutes  of  the  Third  Commission,  meeting  of  June  5. 

2  Annex  8. 

3  Annex  4. 

*  Annex  6. 

*  Annexes  2  and  7. 


[10] 

FOURTH   MEETING 

JUNE  3,  1899  1 


Chevalier  Descamps  presiding. 
The  minutes  of  the  last  meeting  are  read  and  approved. 


Examination,  upon  First  Reading,  of  the  Russian  Draft  Concerning 
**  International '  Arbitration  "  ^ 

The  President  states  that  the  order  of  business  for  the  present  meeting 
should  bring  up  for  discussion  the  draft  of  the  permanent  tribunal  of  arbitration 
presented  by  his  Excellency  Sir  Julian  Pauncefote;  that  since  this  important 
question  should  be  the  subject  of  a  thorough  discussion,  the  committee  will  no 
doubt  consider  it  preferable  to  begin  with  a  discussion  of  the  second  title  of  the 
Russian  draft  concerning  international  arbitration.  This  view  having  been  ap- 
proved, the  President  reads  Article  7  in  the  following  language : 

Article  7 

'  With  regard  to  those  controversies  concerning  questions  of  law,  and  especially  with 
regard  to  those  concerning  the  interpretation  or  application  of  treaties  in  force,  arbitra- 
tion is  recognized  by  the  signatory  Powers  as  being  the  most  effective  and  at  the  same 
time  the  most  equitable  means  for  the  friendly  settlement  of  these  disputes. 

Upon  the  motion  of  Mr.  Asset,  the  words  "  treaties  in  force  "  are  replaced 
by  these  words :  "  international  conventions." 

Upon  the  motion  of  Mr.  Lammasch,  the  word  "  friendly  "  is  stricken  out. 
The  entire  article  thus  modified  is  adopted. 

Article  8 

The  contracting  Powers  consequently  agree  to  have  recourse  to  arbitration  involving 
questions  of  the  character  above  mentioned,  so  far  as  they  do  not  concern  the  vital  interests 
or  national  honor  of  the  litigant  Powers. 

Mr.  Asser  calls  attention,  without  insisting  upon  the  point,  to  the  fact  that 
the  phrase  "  vital  interests  or  national  honor  "  is  a  new  one  and  asks  whether  it 
might  not  be  made  more  definite. 

1  Hall  of  the  Truce.  Present :  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; their  Excellencies  Count  Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the 
Third  Commission;  Messrs.  Asser,  Baron  d'Estournelles  de  Constant,  Holls,  Lammasch, 
Martens,  Odier,  Doctor  Zorn,  members  of  the  committee  of  examination. 

2  See  annexes  1  and  9. 

700 


FOURTH  MEETING,  JUNE  3,  1899  701 

Dr.  Zorn  requests  that  this  phraseology  be  retained;  he  attaches  to  it  the 
greatest  importance  and  to  his  mind  it  forms  an  essential  guaranty,  a  sine  qua  non 
of  the  adhesion  of  his  Government  to  the  decisions  of  the  Conference.  Although 
he  is  not  able  as  yet  to  give  an  opinion  upon  the  question  as  to  whether  his  Gov- 
ernment will  accept  the  principle  of  the  institution  of  a  permanent  tribunal  of 
arbitration  and  obligatory  arbitration,  it  is  certain  so  far  as  it  is  concerned,  that 
such  acceptance  will  in  no  case  be  subordinated  to  the  adoption  of  the  reservation 
in  Article  8.  Dr.  Zorn  is  supported  in  his  opinion  by  the  fact  that  the  American 
proposition  agrees  with  the  text  of  the  Russian  draft. 

Mr.  Martens,  replying  to  Mr.  Asser,  recognizes  that  the  text  of  Article  8 
is  in  fact  new,  but  he  fears  that  it  will  not  be  possible  to  find  a  better. 
[11]  Mr.  Odier,  under  instructions  from  his  Government,  asks  to  have  an  entry 
made  in  the  minutes  showing  that  he  should  be  obliged  to  request  an  addi- 
tion to  the  words  " vitat interests  and  national  honor"  of  a  reference  to  the  Con- 
stitution of  the  country, —  but  if  it  is  understood  that  the  words  written  into  the 
draft  of  these  articles  comprehend,  a  fortiori,  the  national  constitution,  he  is  able 
to  declare  himself  as  in  accord  with  the  proposed  text. 

The  committee  notes  upon  its  records  Mr.  Odier's  declaration. 

Article  8  is  accepted  without  modifications. 

Article  9 

Each  State  remains  the  sole  judge  of  whether  this  or  that  case  should  be  submitted  to 
arbitration,  excepting  those  enumerated  in  the  following  article,  in  which  cases  the  signatory 
Powers  (to  the  present  document)  consider  arbitration  as  obligatory  upon  them. 

Adopted,  omitting  the  words  "  to  the  present  document." 

Article  10 

Upon  the  ratification  of  the  present  document  by  all  the  signatory  Powers,  arbitration 
will  be  obligatory  in  the  following  cases,  so  far  as  they  do  not  concern  the  vital  interests 
nor  national  honor  of  the  contracting  States : 

I.  In  case  of  differences  or  disputes  relating  to  pecuniary  damages  suffered  by  a  State 
or  its  nationals,  as  a  consequence  of  illegal  actions  or  negligence  on  the  part  of  another 
State  or  its  nationals. 

II.  In  case  of  disagreement  relating  to  the  interpretation  or  application  of  the  treaties 
and  conventions  mentioned  below : 

1.  Treaties  and  conventions  relating  to  the  posts  and  telegraphs,  railroads,  and  also 
those  bearing  upon  the  protection  of  submarine  telegraph  cables;  regulations  concerning 
methods  to  prevent  collisions  of  vessels  on  the  high  seas;  conventions  relating  to  the  navi- 
gation of  international  rivers  and  interoceanic  canals. 

2.  Conventions  concerning  the  protection  of  literary  and  artistic  property  as  well  as 
industrial  property  (patents,  trade-marks,  and  trade-names)  ;  conventions  relating  to  money 
and  measures ;  conventions  relating  to  sanitation  and  veterinary  surgery,  and  foi  the  pre- 
vention of  phylloxera. 

3.  Conventions  relating  to  inheritance,  exchange  of  prisoners,  and  reciprocal  assistance 
in  the  administration  of  justice. 

4.  Conventions  for  marking  boundaries,  so  far  as  they  concern  purely  technical  and 
non-political  questions. 

The  preliminary  paragraph  is  adopted,  except  for  the  words  "  between  them  " 
which  are  added  after  the  word  "  obligatory"  (second  line),  upon  the  motion  of 
Mr.  Asser. 


702  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

Section  1.  Mr.  Asser  calls  attention  to  the  fact  that  the  last  words  of  this 
paragraph  "  or  its  nationals  "  give  rise  to  an  excessive  interpretation  because  they 
apply  even  to  suits  between  individuals. 

Mr.  Martens  replies  that  these  words  imply  only  a  case  where  a  Govern- 
ment takes  up  the  cause  for  its  nationals. 

His  Excellency  Mr.  Staal  proposes  the  addition  of  these  words :  "  so  far  as 
they  are  not  within  the  jurisdiction  of  the  local  authorities." 

The  President  proposes  to  postpone  the  examination  and  editing  of  this  last 

sentence. 

Mr.  Asser,  while  approving  the  text  proposed  by  his  Excellency  Mr.  Staal, 
suggests  the  following:  "  in  so  far  as  the  judicial  power  of  the  latter  State  is  with- 
out authority  to  determine  these  disputes." 

His  Excellency  Sir  Julian  Pauncefote  proposes  to  close  the  text  with  these 
words :  "  to  pecuniary  damages,"  and  to  strike  out  what  follows. 

Paragraph  1  is  adopted  unanimously  with  this  omission. 

Section  H,  paragraph  1. 

Mr.  Hells  requests  the  omission  of  the  last  sentence  of  paragraph  1 :  his 
Government  could  not  agree  to  submit  to  obligatory  arbitration  "  conventions 
relating  to  the  navigation  of  international  rivers  and  interoceanic  canals." 

Mr.  Asser  lays  stress  upon  the  fact  that  it  would  be  to  their  interest  to  retain 
this  provision  with  regard  to  rivers. 

Mr.  Hells  does  not  dispute  this,  but  however  desirable  it  may  be  to  submit 
these  cases  to  arbitration,  it  is  very  important  not  to  put  anything  into  the  deci- 
sions of  the  committee  which  might  provoke  formal  resistance  on  the  part  of  a 
State,  and  this  would  certainly  be  the  case  so  far  as  the  United  States  is  con- 
cerned. 

Mr.  Martens  calls  attention  to  the  fact  that  the  Government  of  the  United 
States  might  be  satisfied  with  invoking  the  reservation  in  the  preliminary  para- 
graph. 

Dr.  Zern  supports  the  opinion  of  Mr.  Holls,  although  the  question  of  inter- 
[12]  national  canals  is  not  of  as  serious  interest  to  Germany  as  it  is  to  the  United 
States. 

The  committee  decides  that  in  view  of  the  objection  formulated  and  insisted 
upon  by  Mr.  Holls,  the  last  sentence  of  the  paragraph  shall  be  omitted  subject 
to  further  consideration. 

Chevalier  Descamps  asks  whether  the  words  "  commercial  treaties  and  con- 
sular conventions  "  may  not  be  added  to  the  list. 

Mr.  Martens  is  of  the  opinion  that  it  is  not  desirable  to  extend  the  list  in 
paragraph  1,  especially  in  view  of  the  fact  that  the  first  paragraph  of  Article  H 
gives  full  power  to  do  this  in  the  future. 

Dr.  Zern  shares  Mr.  Martens'  views,  as  does  also  Mr.  Lammasch.  This 
question  is  therefore  postponed. 

Baron  d'Esteurnelles  asks  that  this  question  as  to  commercial  treaties  be 
postponed;  the  French  delegation  is  awaiting  instructions  on  this  subject. 

His  Excellency  Count  Nigra  declares  that  the  ItaHan  Government  has  fully 
decided  to  propose  the  insertion  of  a  clause  providing  for  arbitration  in  all  of  its 
commercial  treaties. 

It  is  decided  to  adopt  provisionally  paragraph  1  of  Section  H  in  this  form : 
"  Treaties  and  conventions  relating  to  the  posts,  telegraphs,  and  telephones  (addi- 


FOURTH  MEETING,  JUNE  3,  1899  703 

tion  proposed  by  Mr.  Asser),  railroads,  and  also  those  bearing  upon  the  protec- 
tion of  submarine  telegraph  cables,  regulations  concerning  methods  to  prevent 
collisions  of  vessels  on  the  seas.  (The  word  "  high  "  omitted  at  the  suggestion  of 
his  Excellency  Count  Nigra.) 

Adopted. 

Paragraph  2  of  Section  II. 

Chevalier  Descamps,  his  Excellency  Count  Nigra,  Baron  d'Estournelles, 
in  connection  with  the  words  "  conventions  relating  to  sanitation  and  veterinary 
surgery  and  for  the  prevention  of  phylloxera  "  suggest  several  modifications,  the 
principle  of  which  is  adopted,  and  the  secretaries  will  take  charge  of  drafting  the 
text. 

Mr.  Hells  proposes  the  omission  of  the  word  "  money  " :  he  cannot  adopt 
the  principle  of  obligatory  arbitration  as  to  this  serious  question. 

Mr.  Martens  remarks  that  it  would  be  very  regrettable  to  reduce  too  seri- 
ously the  cases  for  obligatory  arbitration  by  striking  out  too  many  items. 

Chevalier  Descamps  proposes  to  replace  the  words  "  conventions  relating  to 
measures  "  by  the  words  "  conventions  relating  to  the  system  of  weights  and 
measures." 

Adopted. 

Returning  to  the  proposition  of  Mr.  Holls,  the  President  asks  the  opinion 
of  the  committee. 

Since  the  opinion  of  the  delegate  of  the  United  States  seems  to  be  unchange- 
able, it  is  concluded  to  strike  out  the  word  "  money,"  subject  to  further  revision. 

Mr.  Asser,  seconded  by  Mr.  Odier,  proposes  the  addition  of  a  special  para- 
graph regarding  the  Geneva  Convention. —  Referred  to  the  committee. 

Paragraph  3  of  Section  11. 

Motion  is  made  to  replace  the  word  "  cartel  "  by  "  extradition." 

Adopted. 

Messrs.  Martens  and  Asser  are  asked  if  they  will  act  together  in  modifying 
the  form  of  this  paragraph  to  agree  with  the  principles  of  private  international 
law.  Upon  the  motion  of  Baron  d'Estournelles,  Mr.  Renault  is  asked  to  act 
with  them. 

Adopted. 

His  Excellency  Count  Nigra  proposes  the  following  addition  to  paragraph  3 
of  Section  II:  "Conventions  relative  to  the  reciprocal  free  assistance  to  the 
indigent  sick." 

Adopted. 

Paragraph  4  of  Section  II. 

This  will  read  "  conventions  for  settling  boundaries  "  instead  of  "  conven- 
tions for  marking  boundaries." 

All  of  Article  10,  except  for  the  modifications  and  reservations  formulated 
above,  is  provisionally  adopted.  It  is  also  understood  that  it  will  be  the  subject 
of  a  further  discussion  when  all  of  the  members  of  the  committee  shall  have  re- 
ceived necessary  instructions  from  their  Governments. 

Article  11 

The  enumeration  of  the  cases  mentioned  in  the  above  article  may  be  completed  by  sub- 
sequent agreements  between  the  signatory  Powers  of  the  present  Act. 

Besides,  each  of  them  may  enter  into  a  special  agreement  with  another  Power,  with  a 


704  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

view  to  making  arbitration  obligatory  in  the  above  cases  before  general  ratification,  as  well 
as  to  extend  the  scope  thereof  to  all  cases  which  the  State  may  deem  it  possible  to  submit 
to  arbitration. 

Paragraph  1  is  adopted  without  comment. 

Paragraph  2  is  adopted  v^^ith  the  reservation  that  changes  in  phraseology  will 
be  passed  upon  by  the  secretaries  of  the  committee  as  decided  before. 

n3i  Article  12 

In  all  other  cases  of  international  disputes,  not  mentioned  in  the  above  articles,  arbi- 
tration, while  certainly  very  desirable  and  recommended  by  the  present  Act,  is  only  volun- 
tary; that  is  to  say,  it  cannot  be  resorted  to  except  upon  the  suggestion  of  one  of  the 
parties  in  litigation,  made  of  its  own  accord  and  with  the  express  consent  and  full  agree- 
ment of  the  other  party  or  parties. 

Adopted  with  the  following  modification:  Article  12  takes  the  place  of 
Article  11,  and  Article  11  becomes  Article  12. 

After  a  general  exchange  of  views,  the  committee,  at  the  suggestion  of  the 
President,  decides  that  having  examined  cases  of  arbitration,  it  will  study  the 
question  of  a  court  —  including  the  various  plans  hitherto  presented  concerning 
the  question  of  a  permanent  tribunal  —  then  that  of  procedure. 

Mr.  Asser,  alluding  to  a  remark  by  his  Excellency  Sir  Julian  Pauncefote, 
presents  the  following  proposal : 

The  award  is  binding  only  on  the  parties.  If  there  is  a  question  as  to 
the  interpretation  of  the  convention  concluded  by  a  larger  number  of  States 
than  those  between  which  the  dispute  has  arisen,  the  latter  shall  notify  to 
the  other  signatory  States  the  compromis  they  have  signed  and  each  of  the 
signatory  States  shall  be  entitled  to  intervene  in  the  arbitration  suit.  If 
one  or  more  of  these  States  avail  themselves  of  this  right,  the  interpretation  of 
the  Convention  contained  in  the  award  shall  be  equally  binding  upon  them. 

He  intends  to  call  the  attention  of  the  committee  to  this  amendment  from  this 
time  on. 

Order  of  business  of  the  committee:  Meeting,  Wednesday,  June  7,  at  2 
o'clock,  in  the  Hall  of  the  Truce : 

1.  Postponed  draft  of  Article  10. 

2.  Discussion  of  the  question  of  permanent  tribunal  of  arbitration. 
The  meeting  is  adjourned. 


FIFTH   MEETING 

JUNE  7,  1899  1 


Mr.  Leon  Bourgeois  presiding. 
The  minutes  of  the  last  meeting  are  read  and  approved. 


Examination  upon  First  Reading  of  the  Russian  Draft  Regarding 
•*  International  Arbitration  "  * 

Before  beginning  the  discussion  of  the  question  of  the  permanent  tribunal  of 
arbitration,  the  President  recognizes  Mr.  Asser  who  is  ready  to  submit  to  the 
committee  the  draft  of  Article  10,  prepared  by  him  in  company  with  several  other 
members  of  the  committee  and  Mr.  Renault  : 

Arbitration  will  be  obligatory  between  the  signatory  Powers  in  the  following  cases,  so 
far  as  they  do  not  concern  the  vital  interests  or  national  honor  of  these  Powers. 

I.  In  case  of  differences  or  disputes  relating  to  pecuniary  damages. 
[14]    II.  In  case  of  differences  or  disputes  touching  the  interpretation  or  application  of 

the  conventions  mentioned  below : 

1.  Conventions  relating  to  posts,  telegraphs,  and  telephones; 

2.  Conventions  concerning  the  protection  of  submarine  telegraph  cables; 

3.  Conventions  concerning  transportation  by  railroad ; 

4.  Conventions  and  regulations  concerning  methods  intended  to  prevent  collisions  of 
vessels  at  sea ; 

5.  Conventions  concerning  aid  for  the  sick  and  wounded  in  time  of  war; 

6.  Conventions  concerning  the  protection  of  literary  and  artistic  works,  and  industrial 
property  (patents,  trade-marks  and  trade  names)  ; 

7.  Conventions  concerning  the  system  of  weights  and  measures; 

8.  Conventions  concerning  reciprocal  free  assistance  to  the  indigent  sick; 

9.  Conventions  relating  to  sanitation;  conventions  concerning  epizooty  and  phylloxera; 

10.  Conventions  concerning  civil  procedure; 

11.  Conventions  of  extradition; 

12.  Conventions  for  settling  boundaries  so  far  as  they  concern  purely  technical  and  non- 
political  questions. 

After  this  reading  the  President  consults  the  committee  as  to  the  text  of 
Article  10,  paragraph  by  paragraph. 

Preliminary  paragraph.     A  general  discussion  regarding  the  omission  of  the 

1  Hall  of  the  Truce.  Present :  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; their  Excellencies  Count  Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the 
Third  Commission;  Chevalier  Descamps,  president  and  reporter;  Messrs.  Asser,  Baron 
d'Estournelles  de  Constant,  Holls,  Lammasch,  Martens,  Odier,  Doctor  Zorn,  members 
of  the  committee  of  examination. 

2  Annex  1. 

70S 


706  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

initial  clause  "  upon  the  ratification  of  the  present  document  by  all  the  signatory 
Powers,"  and  Messrs.  Lammasch,  Nigra,  Descamps,  etc.,  take  part  therein. 

This  question  is  reserved  until  the  text  of  the  transitory  article  applicable  to 
the  entire  act  shall  be  agreed  upon,  as  that  article  will  necessarily  be  drafted  by 
the  Conference. 

Subject  to  this  reservation  the  preliminary  paragraph  is  adopted. 

Section  I.  Count  Nigra  remarks  that  the  word  "  pecuniary  "  does  not  seem 
satisfactory  to  him.  A  general  discussion  takes  place  regarding  the  interpreta- 
tion of  the  word  "  damages  "  which  raises  several  entirely  distinct  questions. 

1.  A  question  of  principle:  that  is  whether  a  State  which  claims  to  have  been 
injured  has  a  right  to  damages.  Will  arbitration  be  obligatory  both  as  to  the 
principle  of  the  claim  itself  and  the  responsibility  of  the  Government  concerned? 

2.  The  principle  of  responsibility  being  admitted,  is  there  any  reason  for 
inquiring  whether  arbitration  should  be  obligatory  as  to  the  amount  of  the  indem- 
nity to  be  paid  ? 

3.  In  the  latter  case  should  not  arbitration  cease  to  be  obligatory  if  the  claim 
is  above  a  certain  sum  ? 

Mr.  Lammasch  proposes  to  insert  the  following  restriction:  "If  these 
damages  are  not  the  direct  result  of  an  act  of  the  central  authority." 

The  question  of  adding  this  clause  is  put  to  vote. 

Messrs.  Asser,  Descamps,  and  Lammasch  voted  in  favor  of  it;  the  other 
members  voted  against  it. 

The  President  then  consults  the  committee : 

( 1 )  as  to  whether  it  shall  be  agreed  that  obligatory  arbitration  may  apply  to 
the  question  of  responsibility. 

Messrs.  Asser,  Descamps,  Nigra,  and  Odier  voted  aye. 
Messrs.  Bourgeois,  Holls,  Lammasch,  Sir  Julian  Pauncefote,  Staal, 
and  ZoRN  voted  no. 

(2)  upon  the  application  of  obligatory  arbitration  to  the  determination  of 
the  amount  of  the  indemnity  —  the  principle  being  first  admitted. 

The  committee  unanimously  replies  aye. 

(3)  Finally,  shall  the  amount  of  the  indemnity  be  limited  to  a  certain  maxi- 
mum sum? 

Messrs.  Zorn,  Holls,  and  Sir  Julian  Pauncefote  replied  aye. 
All  other  members  replied  no.     Save  for  formal  modifications  the  committee 
adopts  the  following  text  for  Section  I  of  Article  10 : 

In  case  of  differences  or  disputes  regarding  the  determination  of  the 
amount  of  pecuniary  indemnities,  when  the  principle  of  indemnity  is  al- 
ready recognized  by  the  Parties : 

The  President  reads  Section  II.  Paragraphs  1,  2,  3,  4  are  adopted  except 
for  the  omission  of  the  word  "  telegraphic  "  in  paragraph  2. 

Doctor  Zorn  proposes  the  omission  of  paragraph  5,  "  conventions  concerning 
aid  for  the  sick  and  wounded  in  time  of  war." 

He  thinks  this  clause  would  lead  to  dangers  and  insurmountable  difficulties, 
and  would  even  subject  the  operations  of  war  to  obligatory  arbitration. 

Messrs.  Lammasch,  Martens,  Sir  Julian  Pauncefote  endorse  this  view : 
[15]   belligerents  could  not  subject  themselves  to  obligatory  arbitration  regarding 
the  interpretation  of  the  Geneva  Convention,  while  a  war  was  in  progress. 

The  President  recognizes  the  seriousness  of  the  difficulties  pointed  out,  but 


FIFTH  MEETING,  JUNE  7,  1899  -j^-j 

thinks  however  that  it  would  be  regrettable  to  see  this  clause  disappear  entirely. 
It  may  be  for  the  interests  of  the  belligerents  themselves  to  leave  to  a  third  party 
the  interpretation  of  certain  provisions  in  the  Convention,  it  being  admitted  that 
their  respective  situations  may  not  permit  them  to  reach  an  agreement  which  would 
nevertheless  be  desirable  from  the  point  of  view  of  humanity. 

His  Excellency  Count  Nigra  shares  this  opinion. 

Mr.  Zorn  insists  upon  his  point. 

Mr.  Martens  thinks  too  that  the  interpretation  of  this  clause  will  give  rise  to 
inextricable  difficulties,  because  there  is  not  a  single  war  wherein  the  application 
of  the  Geneva  Convention  does  not  give  rise  to  the  most  virulent  attacks  by  both 
parties. 

Mr.  Odier  is  of  this  opinion  and  thinks  that  the  question  deserves  close 
study.  Later,  under  a  separate  heading  the  Commission  might  seek  the  sanction 
that  the  Geneva  Convention  lacks.  It  will  be  better  too  to  put  paragraph  5  aside 
since  it  contemplates  a  state  of  war,  while  all  the  other  paragraphs  refer  to  a 
time  of  peace. 

After  this  exchange  of  remarks,  and  while  recognizing  the  usefulness  of  a 
future  examination  of  the  general  question  regarding  the  sanction  of  the  Geneva 
Convention  —  a  question  which  does  not  seem  within  the  jurisdiction  of  the  com- 
mittee —  it  is  voted  to  omit  paragraph  5. 

Paragraphs  6,  7,  8,  9.  and  10  are  adopted.  After  the  words  "  concerning 
epizooty "  in  paragraph  9  will  be  added  **  and  preventive  measures  against 
phylloxera  and  other  agricultural  epidemics." 

Regarding  Article  11  (conventions  of  extradition),  Mr.  Odier  says  that  it 
seems  to  him  difficult  to  adopt  it,  at  least  without  explanations. 

Mr.  Hells  states  that  he  understood  this  paragraph  to  mean  that  everything 
relating  to  resort  to  the  local  courts  in  individual  cases  may  not  be  submitted  to 
obligatory  arbitration. 

It  relates  only  to  the  "  interpretation  of  the  conventions  "  as  has  been  indi- 
cated at  the  beginning  of  Section  II. 

Subject  to  this  reservation  paragraph  11  is  adopted. 

The  close  of  paragraph  12  will  be  redrafted  as  follows:  "so  far  as  they 
involve  purely  technical  and  non-political  questions." 

Upon  the  motion  of  Mr.  Asser,  Section  I  will  be  included  not  at  the  beginning 
but  at  the  end  of  Article  10. 

The  President  makes  the  following  comment  regarding  international  rivers 
and  interoceanic  canals :  These  matters,  he  says,  are  especially  of  an  international 
character,  and  it  would  be  interesting  to  see  the  principle  of  arbitration  become 
general  so  far  as  they  are  concerned. 

Especially  where  we  are  concerned  with  these  conventions  which  involve  the 
interests,  commerce,  pacific  activity  of  a  great  number  of  nations,  the  interpre- 
tation and  settlement  of  difficulties  should  be  submitted  to  arbitration,  that  is  to 
say,  the  interest  of  each  State  should  be  made  subordinate  to  the  interest  of  all. 

Chevalier  Descamps  asks  leave  to  make  a  similar  statement  concerning  "  com- 
mercial treaties  "  which  have  also  been  excluded  from  the  cases  of  obligatory 
arbitration. 

Mr.  Hells  would  be  very  much  disposed  to  ask  the  advice  of  his  Govern- 
ment upon  this  subject. 

The  President,  after  having  ascertained  that  there  were  no  other  objections 


708  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

to  the  text  of  Article  10,  consults  the  committee  upon  the  statements  presented 
by  the  Third  Commission  at  the  session  of  June  5.^ 

1.  Chevalier  Descamps  is  commissioned  to  make  a  report  upon  the  state- 
ment of  Count  DE  Macedo  concerning  the  substitution  of  the  word  "  nations  '* 
for  the  word  "  them  "  in  Article  1  of  the  Russian  draft. 

2.  The  word  "  reached  "  (toucher)  will  be  omitted,  and  "  when  circumstances 
permit  "  will  be  substituted  for  "  when  circumstances  allow." 

3.  As  for  the  observation  of  Mr.  d'Ornellas,  the  committee  adopts  the 
following  text  for  Section  III  of  Article  8  (Rolls'  proposition) : 

The  contending  States  cease  from  all  direct  communication  on  the  sub- 
ject of  the  dispute  which  is  regarded  as  referred  exclusively  to  the  mediating 
Powers, 

4.  At  the  request  of  Mr.  Asser  the  word  friendly  is  omitted  from  Article  6, 
and  the  close  of  that  article  will  consequently  read  as  follows :  "  have  strictly  the 
character  of  advice  and  not  binding  force." 

The  President  states  that  it  is  too  late  to  begin  the  discussion  to-day  of  the 
different  plans  for  the  establishment  of  a  permanent  tribunal  of  arbitration. 
This  discussion  will  therefore  be  postponed  to  the  next  meeting. 

His  Excellency  Mr.  Staal  —  after  recalling  the  conditions  under  which  he, 
[16]  as  well  as  the  American  delegation,  presented  a  proposition  concerning  the 
tribunal  of  arbitration  —  accepts,  as  does  also  Mr.  Holls,  the  plan  of  his 
Excellency  Sir  Julian  Pauncefote  as  a  basis  of  discussion. 

The  committee  decides  to  adjust  its  order  of  business  accordingly,  and  fixes 
its  next  meeting  for  Friday,  June  9,  at  3  o'clock  in  the  afternoon. 

The  meeting  adjourns. 

^  See  the  minutes  of  that  meeting. 


SIXTH  MEETING 

JUNE  9,  1899  1 


Mr.  Leon  Bourgeois  presiding. 

The  minutes  of  the  last  meeting  are  read  and  approved. 

In  the  course  of  the  reading  of  the  minutes  Mr.  Leon  Bourgeois  is  desirous 
of  stating  that  it  was  understood  that  the  committee  reserved  the  right  to  a  re- 
examination of  the  text  of  Article  10,  the  French  delegation  having  a  number  of 
observations  to  present  regarding  that  article. 

This  declaration  of  Mr.  Leon  Bourgeois  is  noted  upon  the  minutes. 


General  Discussion  Regarding  the  Principle  of  a  "  Permanent  Tribunal  of 

Arbitration  " 

The  order  of  business  calls  for  the  discussion  of  the  plans  for  the  institution 
of  a  permanent  tribunal  of  arbitration. 

While  desiring  as  president  to  observe  the  strictest  impartiality  during  the 
course  of  the  discussion  of  this  important  question,  Mr.  Leon  Bourgeois  never- 
theless has  imposed  upon  him  the  duty  of  expressing  the  opinion  of  the  French 
delegation ;  he  believes  that  the  way  to  reconcile  these  two  duties  is  to  make  the 
following  general  declaration  at  this  time  which  will  reserve  to  him  thereafter 
entire  freedom  of  action  in  presiding  over  the  committee: 

After  having  acquainted  itself  with  the  various  plans  for  the  establishment 
of  a  permanent  international  institution  for  the  purpose  of  making  the  practice 
of  arbitration  more  general,  the  French  delegation  believes  that  these  various 
plans  —  notably  the  two  plans  put  forth  by  the  Russian  delegation  and  the  British 
delegation  —  are  so  uniform  in  principle  and  purpose  as  to  serve  as  a  basis  for 
the  discussions  of  the  Conference.  The  French  delegation  does  not  therefore 
think  it  necessary  for  it  to  present  a  plan  of  its  own.  But  now  at  the  beginning 
of  the  discussion  in  the  committee  the  delegation  desires  to  point  out  the  gen- 
eral ideas  which  will  guide  it  during  this  debate,  to  fix  the  points  upon  which  it  is 
in  agreement  in  principle  with  the  authors  of  the  two  plans,  and  finally  to  point 
out  certain  propositions  which  it  thinks  might  happily  be  used  to  complete  the 
proposed  plan  and  to  make  its  application  more  easy. 

By  establishing  the  voluntary  scheme  of  recourse  —  not  only  to  a  per- 
manent tribunal  but  also  to  any  system  of  arbitration,  except  in  the  case  espe- 

1  Hall  of  the  Truce.  Present :  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; their  Excellencies  Count  Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the 
Third  Commission;  Chevalier  Descamps,  president  and  reporter;  Messrs.  Asser,  Baron 
d'Estournelles  de  Constant,  Holls,  Lammasch,  Martens,  Odier,  Doctor  Zorn,  members 
of  the  committee  of  examination. 

709 


710  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

cially  provided  for  in  Article  10,  and  by  expressly  excluding  also  "  all  cases 
where  the  vital  interests  or  national  honor  of  States  would  be  involved  " —  the 
drafts  submitted  for  our  examination  seemed  to  have  met  the  first  objections 
which  might  have  been  raised  by  the  most  legitimate  scruples  of  national  senti- 
ment. It  is  important  that  no  appearance  of  moral  coercion  should  be  brought 
to  influence  the  decisions  of  a  State  when  its  dignity,  its  security,  its  inde- 
pendence might  seem  to  it  to  be  involved. 

It  is  in  the  same  spirit  of  fundamental  prudence  and  with  the  same  respect 
[17]  for  national  sentiment  that  the  principle  of  permanent  tenure  of  office 
by  the  judges  has  not  been  included  in  both  drafts.  It  is  impossible  in 
fact  to  avoid  recognizing  the  difficulty  in  the  present  political  condition 
of  the  world  of  forming  a  tribunal  in  advance  composed  of  a  given  number 
of  judges  representing  the  diflferent  countries  and  seated  permanently  to  try 
case  after  case. 

This  tribunal  would  in  fact  give  to  the  parties  not  arbitrators,  respectively 
chosen  by  themselves  with  the  case  in  view  and  invested  with  a  sort  of  personal 
warrant  of  office  by  an  expression  of  national  confidence,  but  judges  in  the 
private  law  sense,  previously  named  without  the  free  choice  of  the  parties.  A 
permanent  court,  however  impartial  the  members  might  be,  would  run  the  risk 
of  assuming  in  the  eyes  of  universal  public  opinion  the  character  of  State  repre- 
sentatives; the  Governments,  believing  that  it  was  subject  to  political  influence 
or  to  currents  of  opinion,  would  not  become  accustomed  to  come  to  it  as  an 
entirely  disinterested  court. 

Freedom  of  recourse  to  the  arbitration  court  and  freedom  in  the  choice 
of  arbitrators  seems  to  us,  as  it  did  to  the  authors  of  these  drafts,  the  essential 
principle  to  the  success  of  the  cause  to  which  we  are  unanimous  in  desiring 
to  render  useful  services. 

Under  this  double  guaranty,  we  do  not  hesitate  to  support  the  idea  of  the 
permanent  institution,  always  accessible  and  charged  with  applying  rules  and 
following  the  procedure  established  between  the  Powers  represented  at  the  Con- 
ference at  The  Hague. 

We  also  accept  the  establishment  of  the  International  Bureau,  which  should 
be  established  to  give,  as  it  were,  continuity,  and  serving  as  a  chancellery, 
clerk's  office,  and  archives  of  the  arbitral  tribunal.  We  believe  that  it  is  particu- 
larly useful  that  it  should  be  continuous  in  its  service,  not  only  for  the  purpose 
of  preserving  at  one  common  point  the  intercourse  between  the  nations,  and  for 
the  purpose  of  rendering  more  certain  the  unity  of  procedure  and,  later  on, 
that  of  jurisprudence,  but  also  for  the  purpose  of  reminding  incessantly  the 
spirit  of  all  people  by  a  conspicuous  and  respected  sign,  of  the  superior  idea 
of  right  and  of  humanity,  which  the  invitation  of  His  Majesty  the  Emperor 
of  Russia  calls  upon  all  civilized  States  to  follow  in  common  up  to  the  point 
of  realization. 

The  French  delegation  at  the  same  time  believes  that  it  is  possible  to  invest 
this  permanent  institution  with  an  even  more  efficacious  role.  It  is  of  the 
opinion  that  the  Bureau  might  be  invested  with  an  international  mandate,  strictly 
limited,  giving  it  the  power  of  initiative,  and  facilitating  in  most  cases  the  re- 
course of  Powers  to  arbitration. 

In  case  there  should  develop  between  two  or  more  of  the  signatory  States  one 
of  the  differences  recognized  by  the  convention  as  being  a  proper  subject  for 
arbitration,   the   permanent   Bureau    should   have   the   duty   of    reminding   the 


SIXTH  MEETING,  JUNE  9,  1899  711 

litigating  parties  of  the  articles  of  this  Convention,  having  for  its  object  the 
right  or  the  obligation  to  have  recourse,  by  consent  in  such  a  case,  to  arbitra- 
tion; it  would  therefore  offer  its  services  to  act  as  an  intermediary  between 
them,  in  putting  into  motion  the  procedure  of  arbitration,  and  opening  unto 
them  access  to  its  jurisdiction. 

It  is  often  a  legitimate  prejudice  and  an  elevated  sentiment  which  may 
prevent  two  nations  from  coming  to  a  pacific  arrangement.  In  the  present 
state  of  public  opinion,  whichever  of  the  two  Governments  first  requested  arbi- 
tration might  fear  having  its  initiative  considered  in  its  own  country  as  an 
exhibition  of  weakness,  and  not  as  bearing  witness  to  its  entire  confidence  in  its 
good  right. 

In  giving  to  the  permanent  Bureau  a  particular  duty  of  initiative,  we  believe 
this  apprehension  would  be  forestalled.  It  is  the  recognition  of  an  analogous 
difficulty  that  has  led  the  Third  Commission  not  to  hesitate,  in  cases  even  more 
serious  and  more  general,  to  recognize  the  right  of  neutrals  to  offer  their  media- 
tion, and  in  order  to  encourage  them  in  the  exercise  of  this  right,  the  Commis- 
sion has  declared  that  their  intervention  cannot  be  considered  as  an  unfriendly 
act.  A  fortiori,  in  the  special  cases  of  arbitral  procedure  to  which  this  present 
Convention  has  reference,  it  is  possible  to  give  to  the  permanent  Bureau  a  pre- 
cise duty  of  initiative.  It  will  be  charged  with  reminding  the  parties  of  those 
articles  of  this  international  Convention,  which  would  seem  to  the  Bureau  to 
cover  the  difference  between  them,  and  it  would  ask  them,  therefore,  whether 
they  would  consent,  under  conditions  foreseen  by  themselves,  to  arbitral  pro- 
cedure —  in  other  words,  simply  to  carry  out  their  own  engagements.  To  a 
question  thus  asked,  the  answer  will  be  easy,  and  the  scruple  on  the  score  of  dig- 
nity which  might  otherwise  prevent  such  recourse,  will  disappear.  In  order  to 
put  in  motion  one  of  the  mighty  machines  by  which  modern  science  is  trans- 
forming the  world,  it  is  sufficient  simply  to  push  a  finger  at  the  point  of  contact: 
still,  it  is  necessary  that  some  one  should  be  charged  with  the  duty  of  making 
this  simple  movement. 

The  French  delegation  believes  that  the  institution  to  which  such  inter- 
national mandate  may  be  confided,  will  play  in  history  a  role  which  will  be  nobly 
useful. 

His  Excellency  Sir  Julian  Pauncefote  reads  the  following  statement: 

Before  entering  upon  the  extremely  interesting  question  which  is  to  engage 
our  attention  to-day,  I  wish  to  take  occasion  to  express  my  thanks  to  my  col- 
leagues from  Russia  and  America  who  have  kindly  consented  that  the 
[18]  plan  for  a  permanent  international  tribunal  of  arbitration  which  I  have  had 
the  honor  to  introduce  in  the  Commission  should  be  the  basis  of  our  de- 
liberations. In  the  projects  which  they  have  themselves  introduced,  improve- 
ments of  my  own  may  be  found,  and  the  committee  will  surely  appreciate  their 
value  as  that  of  the  other  amendments  which  no  doubt  will  be  introduced.  I 
wish  also  to  thank  the  first  delegate  of  France  for  the  declaration  which  he  has 
just  read,  and  in  which  he  has  informed  the  committee  that  he  also  was  willing 
to  take  my  plan  as  the  basis  of  the  discussion,  and  at  the  same  time  I  thank 
the  other  members  of  the  committee  who  have  done  me  the  honor  of  expressing 
themselves  to  the  same  effect.  I  am  persuaded  that  in  view  of  the  exceptional 
talents  which  are  to  be  found  in  this  committee,  we  shall  attain  a  result  worthy 
of  the  mandate  so  nobly  confided  to  the  Conference  by  His  Imperial  Majesty 
the  Emperor  of  Russia. 


712  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

The  President  opens  the  general  discussion  upon  the  question  of  the 
permanent  tribunal  of  arbitration. 

Chevalier  Descamps  has  the  floor :  The  institution  of  a  permanent  tribunal 
of  arbitration  responds  to  the  juristic  consciences  of  civilized  peoples,  to  the 
progress  achieved  in  national  life,  to  the  modern  development  of  international 
litigation,  and  to  the  need  which  compels  States  in  our  days  to  seek  a  more 
accessible  justice  in  a  less  precarious  peace. 

It  can  be  a  powerful  instrument  in  strengthening  devotion  to  law  through- 
out the  world. 

And  it  is  a  fact  of  capital  importance  that  three  projects  of  this  kind  have 
been  presented  by  three  great  Powers.  These  projects  are  diverse  in  character, 
but  it  seems  possible  to  harmonize  them  in  a  manner  which  will  accomplish  all 
the  results  immediately  attainable. 

The  establishment  of  permanent  arbitral  jurisdictions  is  by  no  means  an 
innovation  without  precedent  in  international  law.  The  Convention  of  Berne 
of  October  14,  1890,  provides  for  the  establishment  of  a  free  tribunal  of  arbi- 
tration, to  which  the  German  delegation,  at  the  very  first  Conference  in  1878, 
wanted  to  confide  most  important  attributes.  Other  offices  of  a  permanent 
juridical  nature  are  still  in  operation  in  the  law  of  nations.  The  establishment 
of  the  permanent  tribunal  of  arbitration  presents  no  insurmountable  difficulties, 
and  it  may  easily  be  the  most  important  factor  in  the  international  problem 
before  the  Conference  of  The  Hague. 

The  difficulties  which  the  realization  of  the  magnanimous  views  of  the 
Emperor  of  Russia  has  encountered  in  other  fields  are  another  reason  for  us 
to  urge  forward  the  organization  of  mediation  and  arbitration.  We  must  de- 
velop and  consolidate  the  organic  institutions  of  peace.  There  is  on  this  point 
a  general  expectancy  in  every  land,  and  the  Conference  cannot,  without  serious 
disadvantages,  disappoint  it. 

The  proportions  which  we  shall  give  to  this  work  which  we  are  about 
to  undertake  will  be,  without  doubt,  modest;  but  the  future  will  develop  what- 
ever fertility  this  work  has  for  the  welfare  of  the  nations  and  for  the  progress 
of  humanity. 

As  for  the  delegates  to  this  Conference  it  will  be,  without  doubt,  one  of 
the  greatest  joys  of  their  lives  to  have  cooperated  in  the  achievement  of  this 
great  result, —  the  fraternal  approach  of  the  nations  and  the  stability  of  general 
peace. 

After  this  general  introduction,  Mr.  Descamps  adds  that  several  improve- 
ments might  be  made  in  the  plans  for  the  arbitral  tribunal  by  borrowing  certain 
provisions  from  the  draft  prepared  by  the  Interparliamentary  Conference  of 
Brussels. 

He  reserves  to  himself  the  right  of  calling  attention,  during  the  course  of 
the  deliberations,  to  those  of  these  provisions  which  might  be  profitably  adopted 
with  a  view  of  giving  a  stronger  unity  to  the  new  international  organism  with- 
out encroaching  upon  the  sovereignty  of  States. 

Dr.  Zorn  has  listened  with  the  greatest  attention  and  with  profound  emo- 
tion to  the  preceding  declarations;  he  recognizes  to  the  fullest  extent  the 
solemnity  of  this  hour,  when  the  representatives  of  the  greatest  civilized  Powers 
are  called  upon  to  pronounce  judgment  upon  one  of  the  gravest  problems  which 
could  be  presented  to  them;  he  desires  to  express  the  sincere  hope  that  the  day 
will  come  when  the  noble  wish  of  the  Czar  may  be  accompHshed  in  its  entirety. 


-    SIXTH  MEETING,  JUNE  9,  1899  713 

and  when  conflicts  between  States  may  be  regulated,  at  least  in  the  great  majority 
of  cases,  in  so  far  as  they  concern  neither  vital  interests  nor  national  honor, 
by  a  permanent  international  court.  But,  he  adds,  filled  though  I  am,  personally, 
with  this  hope,  I  cannot,  I  must  not,  surrender  myself  to  illusions;  and  such  is, 
I  am  sure,  the  opinion  of  my  Government  also.  It  must  be  recognized  that 
the  proposition  now  proposed  and  submitted  to  the  judgment  of  the  committee  is 
but  a  generous  project;  it  cannot  be  realized  without  bearing  with  it  great  risks 
and  even  great  dangers  which  it  is  simple  prudence  to  recognize.  Would  it 
not  be  better  to  wait  the  results  of  greater  preliminary  experience  upon  this 
subject? 

If  these  experiences  prove  successful,  and  if  they  realize  the  hopes  reposed 
[19]  in  them,  the  German  Government  will  not  hesitate  to  cooperate  to  that 
end,  by  accepting  the  experiment  of  arbitration  having  far  greater  scope 
than  anything  which  has  been  in  practice  up  to  this  day.  But  it  cannot  possibly 
agree  to  the  organization  of  the  permanent  tribunal  before  having  the  preliminary 
benefit  of  satisfactory  experience  with  occasional  arbitrations. 

In  this  situation,  continues  Dr.  Zorn,  notwithstanding  my  intense  desire  to 
assist  with  all  my  might  in  bringing  the  work  of  this  committee  to  a  successful 
conclusion,  I  regret  to  be  compelled  to  move  that  Article  13  of  the  original 
Russian  project  be  made  the  basis  of  further  discussion  instead  of  the  plans  for 
the  permanent  tribunal,  inasmuch  as  this  plan  accurately  represents  the  views  of 
the  Imperial  German  Government  upon  the  subject. 

The  President  opens  the  discussion  upon  this  preliminary  proposal  of  Dr. 
Zorn. 

Mr.  Asser  recognizes  that  it  would  certainly  be  useful  to  have  experience, 
but  according  to  him  this  experience  has  already  been  had,  in  the  occasional 
.arbitrations  which  have  heretofore  occurred.  What  was  left  to  try  was  pre- 
cisely the  plans  now  proposed,  for  they  all  implied  the  establishment  of  a  court 
which  should  be  entirely  voluntary.  It  seems  to  him  that  the  conclusion  which 
the  honorable  Dr.  Zorn  has  arrived  at  need  not  be  quite  so  absolute,  and  that 
without  receding  from  the  opinion  which  he  has  just  stated,  in  a  manner  which 
has  deeply  impressed  the  committee,  he  might  still  postpone  further  opposing 
the  establishment  of  the  permanent  tribunal  of  arbitration,  and  might  consent 
to  look  upon  it,  according  to  the  expression  of  his  Excellency  Count  Nigra,  as 
a  "  temporary  permanent  tribunal." 

Dr.  Zorn  was  not  unmindful  of  the  validity  of  Mr.  Asser's  argument,  but 
he  raised  another  objection.  There  was  obviously  a  great  difference  between 
an  occasional  arbitration  and  the  institution  of  a  tribunal  permanently  charged 
with  exercising  the  role  of  an  arbitrator  according  to  a  code  of  procedure  and 
certain  rules  determined  in  advance.  Besides,  Dr.  Zorn  wishes  to  remind  the 
committee  that  the  Russian  Government  has  modified  its  first  project.  The 
German  Government  had  accepted  the  original  Russian  project  and  no  other,  as 
the  basis  of  the  work  of  the  Conference.  He  could  therefore  not  to-day  accept 
this  experimental  establishment  of  a  temporary  "  permanent  tribunal "  even 
provisionally : 

1.  Because  such  an  establishment  has  not,  according  to  his  view,  been  fore- 
shadowed in  the  initial  program  of  the  Russian  Government ; 

2.  Because  practically  it  was  very  probable  that  a  provisional  permanent 
tribunal  could  not  be  long  in  becoming  definitely  and  actually  permanent. 

Under  these  circumstances  Dr.  Zorn  insists  upon  the  preceding  observations. 


714  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

His  Excellency  Count  Nigra  appeals  directly  to  the  spirit  of  conciliation  of 
Dr.  ZoRN,  and  in  a  brief  speech  he  calls  attention  to  the  consequences  of  a  negative 
decision,  upon  a  question  which  interests  all  civilized  humanity  to  so  great  a 
degree.  The  impatience  with  which  public  opinion  awaits  the  results  of  our 
labors  has  become  so  great  that  it  would  be  dangerous  to  disappoint  them  en- 
tirely, by  rejecting  the  idea  of  a  permanent  tribunal.  If  to  all  these  aspirations 
the  Conference  returned  a  curt  non  possumus,  the  dissatisfaction  and  disappoint- 
ment would  be  tremendous. 

In  such  a  case  the  Conference  would  incur  most  grave  responsibilities  before 
history,  before  the  people  represented  here,  and  before  the  Emperor  of  Russia. 

In  conclusion,  his  Excellency  Count  Nigra  earnestly  requests  the  German 
delegate  not  to  refuse  categorically  to  go  on  with  the  discussion,  but  to  refer 
the  question  once  more  to  his  Government. 

Chevalier  Descamps  supports  the  remarks  just  made  by  his  Excellency  Count 
Nigra, 

Dr.  Zorn  responds  that  he  recognizes  the  force  of  these  remarks  to 
their  fullest  extent,  and  that  he  would  therefore  not  abstain  from  cooperating 
further  with  the  work  of  the  committee  in  the  direction  of  the  permanent  tribunal, 
although  it  must  be  clearly  understood  that  he  could  by  no  means  bind  his 
Government. 

This  declaration  of  Dr.  Zorn  is  entered  upon  the  minutes,  it  being  well 
understood  that  it  reserves  his  entire  liberty  of  action  and  ultimate  decision. 

The  preliminary  question  raised  by  Dr.  Zorn  being  thus  settled,  the  com- 
mittee continues  the  general  discussion. 

Mr.  Martens  desires,  in  his  turn,  to  make  the  following  explanations : 

When  the  Russian  Government  formulated  its  first  proposals  concerning 
arbitration,  it  doubtless  had  in  view  the  general  outlines  of  the  project  which 
was  distributed,  but  this  project  was  nothing  but  an  outline,  and  necessarily  re- 
quired many  amendments  and  additions,  which  the  Russian  Government  only  com- 
pleted by  specifying.  He  has  always  thought,  without  going  into  the  details  of  the 
question,  that  this  was  the  time  and  place  to  provide  for  the  procedure  and  for  the 
establishment  of  arbitral  tribunals,  always  giving  to  the  Powers  in  litigation  com- 
plete liberty  in  choice  of  arbitrators.  The  Russian  Government  considered  that  its 
duty  was  complete  when  it  suggested  to  the  Powers  the  result  of  its  reflections 

without  wishing  tc  impose  its  opinion  upon  any  one. 
[20]  There  were  provisions  in  all  of  the  projects  under  discussion  which  naturally 
would  give  rise  to  the  fears  expressed  by  Dr.  Zorn,  but  these  were 
misunderstandings  which  it  ought  to  be  easy  to  dispose  of  during  the  discussion 
which  was  sure  to  arise.  Might  it  not  be  possible,  for  example,  to  adopt  at  the 
head  of  all  the  provisions  about  the  permanent  tribunal  an  article  recognizing 
the  absolute  liberty  of  the  parties  in  litigation  to  make  their  own  free  choice? 

It  might  be  expressed  as  follows: 

In  the  case  of  a  conflict  between  the  signatory  or  adhering  Powers 
they  shall  decide  whether  the  controversy  is  of  a  nature  to  be  brought  before 
a  tribunal  of  arbitration,  constituted  according  to  the  following  articles,  or 
whether  it  is  to  be  decided  by  an  arbitrator  or  a  special  tribunal  of  arbitra- 
tion. 

His  Excellency  Sir  Julian  Pauncefote  is  of  the  opinion  that  his  project 
makes  an  entire  and  express  reservation  of  the  liberty  of  the  parties. 


SIXTH  MEETING,  JUNE  9,  1899  715 

His  Excellency  Count  Nigra  asks  if  the  beginning  of  Article  1  cannot  be 
worded  as  follows : 

With  the  object  of  facilitating  an  immediate  recourse  to  arbitration  for 
international  diflFerences  which  could  not  be  settled  by  diplomacy,  the  signa- 
tory Powers  undertake  to  organize,  etc. 

Chevalier  Descamps  thinks  that  the  heading  alone  of  the  articles  relating 
to  arbitration  might  satisfy  all  the  scruples  expressed  above  if  it  were  thus 
worded :  free  tribunal  of  arbitration. 

The  President  considers  that  as  the  committee  are  agreed  in  declaring  that 
the  permanent  tribunal  of  arbitration  should  not  be  obligatory  upon  any  one,  and 
as  we  are  all  in  accord  upon  this  principle,  it  might  be  best  to  reserve  the  ques- 
tion as  to  whether  it  should  be  expressed  in  a  preliminary  article  or  otherwise. 

The  committee  being  of  the  same  opinion  as  the  President  upon  this  point, 
Mr.  Odier  wishes  to  adhere  expressly  to  the  declaration  previously  made  by 
Mr,  Descamps  and  Count  Nigra  in  favor  of  the  establishment  of  the  permanent 
tribunal  of  arbitration :  "  More  than  one  hope,  more  than  one  expectation,  of 
arbitration  has  dawned  on  the  world;  and  popular  opinion  has  the  conviction 
that  in  this  direction,  above  all,  important  steps  will  be  taken  by  the  Conference. 
No  one  can  deny,  in  fact,  that  we  are  able  at  this  moment  to  take  a  new  and 
decisive  step  in  the  path  of  progress.  Shall  we  draw  back,  or  reduce  to  in- 
significant proportions  the  importance  of  the  innovation  expected  of  us?  If 
so,  we  should  arouse  a  universal  disappointment,  the  responsibility  for  which 
would  press  heavily  upon  us  and  our  Governments.  The  important  innovation 
which  we  can  present  to  humanity  at  large  is  the  establishment  of  a  permanent 
institution  which  will  always  be  in  evidence  before  the  eyes  of  the  world,  a  tan- 
gible result,  so  to  speak,  of  the  progress  which  had  been  made." 

Although  recognizing  the  force  of  the  objections  raised  by  Dr.  Zorn, 
Mr.  Odier  cordially  joins  in  the  wish  expressed  by  Count  Nigra  that  the  Ger- 
man delegate  would  once  more  refer  the  question  to  his  Government. 

Mr.  Lammasch  also  wishes  to  express  his  opinion  and  his  reservations. 
Notwithstanding  the  fact  that  the  circular  of  Count  Mouravieff  had  made 
no  mention  whatever  as  to  the  possibility  of  the  establishment  of  the  permanent 
tribunal,  he  had  not  opposed  the  acceptance  by  the  committee  of  the  project  of 
Lord  Pauncefote  as  the  basis  of  the  discussion,  but  he  was  not  empowered 
to  act  so  far  as  to  declare  that  Austria-Hungary  was  ready  to  indorse  the  estab- 
lishment of  a  permanent  tribunal.  This  institution  might,  indeed,  be  established 
in  many  ways,  some  of  which  might  be  objectionable,  according  to  the  further 
decisions  of  the  Conference.  Professor  Lammasch  concludes  by  saying  that  he 
accepted  the  project  of  Lord  Pauncefote  as  the  basis  of  discussion,  in  order 
not  to  delay  or  hinder  the  very  important  work  of  the  committee  and  that  he  was 
ready  to  take  part  in  the  discussion  with  all  possible  good-will,  but  under  the 
express  reserve  that  his  participation  in  the  debate  could  have  no  other  character 
than  that  of  a  preliminary  examination  of  the  question,  and  that  it  could  not 
for  the  present  in  any  way  commit  his  Government. 

This  remark  and  reservation  of  Mr.  Lammasch  is  duly  entered  upon  the 
minutes. 

Mr.  Hells  makes  a  declaration  of  which  the  following  is  a  summary: 

I  have  listened  with  the  greatest  attention  to  the  important  exchange  of 


716  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

opinion  which  has  just  taken  place  between  the  representatives  of  different  great 
European  States.  It  has  seemed  proper  to  me,  representing,  as  it  were,  a  new 
Power,  that  precedence  in  the  discussion  should  naturally  be  given  to  the  dele- 
gates of  the  older  countries.  This  is  the  first  occasion  upon  which  the  United 
States  of  America  takes  part  under  circumstances  so  momentous  in  the  delibera- 
tions of  the  States  of  Europe,  and  having  heard,  with  profound  interest,  the 
views  of  the  great  European  Powers,  I  consider  it  my  duty  to  my  Government, 
as  well  as  to  the  committee,  to  express  upon  this  important  subject  the  views  of 
the  Government  of  the  United  States  with  the  utmost  frankness. 

I  join  most  sincerely  and  cordially  in  requests  which  have  been  addressed 
to  the  honorable  delegate  of  the  German  Empire. 
[21]  In  no  part  of  the  world  has  public  opinion  so  clearly  and  unmistakably 
expressed  its  adherence  to  the  noble  sentiments  of  His  Majesty  the  Emperor 
of  Russia,  as  in  America.  Nowhere  do  more  sincere  wishes,  hopes,  and  prayers 
ascend  to  heaven  for  the  success  of  this  Conference.  We  have  received  hundreds 
of  expressions  of  sympathy  and  support,  not  only  from  the  United  States,  but 
from  the  entire  American  continent ;  and  these  manifestations  come  from  organ- 
izations of  the  highest  standing  and  the  widest  influence. 

In  consequence,  we,  the  members  of  this  Conference,  are  bound,  so  to 
speak,  by  a  most  solemn  moral  obligation,  incurred,  not  between  the  Governments, 
but  between  the  peoples  of  the  civilized  world.  Let  me  ask  the  honorable  mem- 
bers of  this  committee  to  approach  the  question  before  us  in  a  practical  spirit,  such 
as  is  generally  attributed  to  us  Americans ;  let  us  observe  the  true  state  of  public 
opinion.  Public  opinion,  all  over  the  world,  is  not  only  eagerly  hoping  for  our 
success,  but  it  should  be  added  that  it  has  become  uneasy  and  anxious  about  it. 
By  reason  of  interests,  vital  to  it,  which  we  have  to  discuss,  it  fears  that  the 
results  of  this  Conference  will  turn  out  purely  unsatisfactory,  platonic.  And 
it  should  be  recognized  that  these  fears  are  based  upon  a  recent  experience. 
A  conference  profoundly  interesting  to  mankind,  namely,  upon  the  protection  of 
the  interests  of  labor,  met  at  Berlin  upon  the  noble  and  generous  initiative  of  the 
German  Emperor.  What  was  the  result?  Resolutions  of  a  purely  platonic 
character. 

Public  opinion  expects  more  this  time;  it  will  not  pardon  a  new  rebuff, 
and  the  very  hopes  which  are  now  concentrated  upon  us  and  our  work  will 
be  the  measure  of  the  disappointment  which  would  follow  our  failure.  With- 
out doubt  Dr.  Zorn  is  correct  in  recalling  the  difference  existing  between  occa- 
sional arbitration  and  that  contemplated  in  the  initial  Russian  draft;  but  from 
a  practical  view-point  —  the  view-point  of  efficient  and  critical  public  opinion 
all  over  the  world  —  I  venture  to  say  that  we  shall  have  done  nothing  whatever 
if  we  separate  without  having  established  a  permanent  tribunal  of  arbitration. 

Record  is  made  of  Mr.  Holls'  declaration,  which  is  warmly  supported  by 
Mr.  AssER,  Sir  Julian  Pauncefote,  and  Count  Nigra. 

The  general  discussion  is  closed.  The  committee  begins  the  reading  of  the 
articles. 


SIXTH  MEETING,  JUNE  9,  1899  717 

Examination,   Upon  Its   First   Reading,   of  the   Plan  for  the   "Permanent 
Tribunal  of  Arbitration  "  by  His  Excellency  Sir  Julian  Pauncef  ote  ^ 

(Continued) 

A  general  exchange  of  views  takes  place  regarding  Article  1  of  Sir  Julian 
Pauncefote's  draft. 

The  committee  shares  the  view  of  Mr.  Bourgeois  regarding  the  words 
tribunal  or  court  the  use  of  which  seems  premature.  We  do  not  know  yet 
exactly  what  we  shall  do,  and  until  some  change  is  decided  upon  we  shall  use 
the  broader  term  institution. 

Count  Nigra,  referring  to  Article  1,  calls  attention  to  the  inconvenience  of 
using  the  word  States  sometimes,  and  again  the  word  Power.  He  proposes  that  we 
agree  upon  a  uniform  terminology;  the  word  "  State  "  seems  most  suitable. 

Chevalier  Descamps  expresses  a  contrary  view. 

Concurring  with  Sir  Julian  Pauncefote,  Mr.  Martens  expresses  the 
opinion  that  we  might  divide  Article  1  into  two  parts : 

1  and  1  bis.  The  first  concerning  organization,  the  second  concerning  juris- 
diction. 

The  second  paragraph  would  be  begun  with  the  words :  "  This  tribunal 
should  be  competent,"  and  each  of  the  two  paragraphs  forming  a  separate  article 
would  appear  as  follows  in  the  draft: 

Article  1 

With  the  object  of  facilitating  an  immediate  recourse  to  arbitration  for 
international  differences  which  might  not  have  been  settled  by  diplomacy, 
the  signatory  Powers  undertake  to  organize  in  the  manner  hereinafter  men- 
tioned a  permanent  tribunal  of  arbitration,  accessible  at  all  times,  and  which 
shall  be  governed  by  the  code  of  arbitration  inserted  in  this  Convention, 
unless  otherwise  stipulated  by  the  parties  in  dispute.^ 

Article  1  bis 

This  tribunal  shall  be  competent  for  all  arbitration  cases  whether  obliga- 
tory or  voluntary,  unless  the  parties  in  dispute  agree  to  institute  a  special 
tribunal. 

These  two  articles  are  adopted  subject  to  further  revision  as  to  form. 

Article  2 

The  President  reads  Article  2  of  Sir  Julian  Pauncefote's  draft.  A 
discussion  takes  place  as  to  the  form  of  paragraph  1  of  this  article. 

1  Annex  2,  B. 

2  [Sir  Julian  Pauncefote's  project  was  drafted  in  English.  This  was  translated  into 
French  and  the  French  text  was  presented  to  the  committee  and  Commission  for  considera- 
tion. When  the  final  convention  was  drafted  a  considerable  part  of  the  original  French  text 
remained  intact,  and  was  adopted.  When  an  English  translation  of  the  convention  was  made 
by  both  Great  Britain  and  the  United  States,  the  original  English  text  of  Sir  Julian  Paunce- 
fote seems  to  have  been  entirely  disregarded,  and  the  English  translation  of  the  final  con- 
vention differs  considerably  from  Sir  Julian  Pauncefote's  draft  even  where  the  French 
still  remains  the  same  as  the  French  translation  first  presented  to  the  committee.  The  Eng- 
lish translation  here  used  is  made  to  conform  to  the  translation  officially  adopted  by  the 
United  States  Government.] 


718  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

[22]  The  committee,  upon  being  consulted  by  the  President,  unanimously  ac- 
cepts the  designation  of  The  Hague  as  the  seat  of  the  permanent  tribunal. 

Mr.  Asser  is  authorized  to  declare  that  the  Netherland  Government  is 
highly  honored  by  this  selection  by  the  committee  and  by  the  unanimity  of  its 
members  in  agreeing  thereto. 

The  words  "  for  that  purpose  "  are  stricken  out. 

Chevalier  Descamps  is  asked  to  investigate  and  obtain  a  final  list  of  the 
powers  and  duties  of  the  bureau. 

Article  2  is  therefore  adopted  for  the  time  being  in  the  following  form: 

Article  2 

A  permanent  central  bureau  shall  be  established  at  The  Hague  where 
the  archives  of  the  tribunal  shall  be  preserved,  and  its  official  business  shall 
be  transacted.  A  permanent  secretary,  an  archivist  and  a  suitable  staff  shall 
be  appointed  who  shall  reside  on  the  spot. 

The  bureau  will  be  the  channel  for  communications  relative  to  the 
meetings  of  the  tribunal  at  the  request  of  the  contesting  parties.^ 

Article  3 
Mr.  Hells  proposes  to  insert  the  following  amendment : 

When  possible  these  persons  shall  be  nominated  by  the  majority  of  the 
members  of  the  highest  court  then  existing  in  each  of  the  adhering  States, 
and,  in  any  case,  they  shall  be  selected  by  reason  of  their  ability  to  decide, 
according  to  the  spirit  of  the  law,  all  questions  over  which  they  may  have 
jurisdiction. 

In  support  of  this  amendment  Mr.  Holls  says  that  especially  in  American 
Republics  public  opinion  will  not  permit  a  selection  of  judges  to  be  accompanied 
by  a  suspicion  of  political  influence.  Each  of  these  republics  possesses  a  su- 
preme court  which  would  seem  best  qualified  to  guide  the  President  in  the  choice 
of  members  of  the  future  arbitration  tribunal.  The  judges  of  the  highest  court 
are  in  a  situation  to  know  and  to  estimate  the  worth  of  judges  and  of  members 
of  courts  of  their  country,  and  they  can  have  no  other  interest  than  that  of 
choosing  the  most  competent  and  the  most  trustworthy  representatives.  It  would 
be  the  same  in  nearly,  if  not  all,  of  the  continental  states.  The  purpose  of  the 
amendment  is  not  to  take  away  from  the  sovereign  or  from  the  head  of  the  ex- 
ecutive branch  of  the  Government  the  power  of  nomination,  but  to  gain  the 
support  of  public  opinion  which  would  have  greater  confidence  in  the  proposed 
tribunal  if  it  were  understood  that  the  highest  court  of  each  country  would  par- 
ticipate in  the  designation  of  its  members. 

Mr.  Holls  declares  that  his  instructions  direct  him  to  ask  for  a  vote  on  this 
question. 

In  view  of  the  opposition  to  the  proposition  of  Mr.  Holls  manifested  by 
all  the  other  members  of  the  committee,  it  is  decided  that  the  report  shall  men- 
tion the  spirit  of  impartiality  which  should  govern  the  choice  and  nomination 
of  the  judges. 

After  an  exchange  of  views  by  Messers.  Bourgeois,  Sir  Julian  Paunce- 
FOTE,  Count  Nigra,  Baron  d'Estournelles  and  Descamps,  the  committee  thinks 

1  See  minutes  following. 


SIXTH  MEETING,  JUNE  9,  1899  719 

the  word  "  lawyer  "  {juris consulte)  is  too  narrow  in  the  ordinary  acceptance  of 
the  term. 

Chevalier  Descamps  proposes  that  two  or  more  Powers  might  agree  upon 
the  designation  of  two  members  in  common  as  is  provided  in  the  draft  of  the 
Interparliamentary  Conference. 

The  President  reads  the  first  paragraph  of  Article  3,  as  it  was  adopted  at 
the  first  reading,  the  text  of  which  follows  below. 

As  for  the  second  paragraph,  Chevalier  Descamps  proposes  an  addition  limit- 
ing the  duration  of  the  term  of  a  member  of  the  tribunal  to  six  years,  unless  it  is 
renewed.  It  is  well,  he  says,  to  avoid  life  appointments.  The  committee  agrees 
with  this  view,  and,  subject  to  certain  modifications  which  Mr.  Descamps  wishes 
to  make  in  the  phraseology,  adopts  provisionally  the  following  complete  text  of 
Article  3: 

Within  the  three  months  following  the  ratification  of  the  present  act, 
each  signatory  Power  shall  select  two  persons  of  known  competency  in 
international  law,  of  the  highest  moral  reputation,  and  disposed  to  accept 
the  duties  of  arbitrator. 

The  persons  thus  selected  shall  be  inscribed  as  members  of  the  tribunal 
in  a  list  which  shall  be  notified  to  all  the  signatory  Powers  by  the  central 
bureau. 

Two  or  more  Powers  may  agree  on  the  selection  in  common  of  two 
members.     The  same  person  can  be  selected  by  different  Powers. 

The  members  of  the  tribunal  are  appointed  for  a  period  of  six  years; 
their  appointment  can  be  renewed. 

In  case  of  the  death  or  retirement  of  a  member  of  the  tribunal,  the 
same  rules  shall  be  followed  for  new  appointments.^ 

[23]  It  is  understood  that  the  report  of  the  present  session  shall  remain  strictly 
confidential  until  some  future  decision  to  the  contrary. 

The  President  places  upon  the  order  of  the  business  for  the  next  meeting 
Article  4  et  seq.  of  the  Pauncefote  draft.  That  meeting  will  take  place  Monday, 
June  12,  at  2 :30  o'clock.  Hall  of  the  Truce. 

The  meeting  adjourns. 

1  See  the  minutes  of  the  following  meeting. 


SEVENTH   MEETING 

JUNE  12,  1899  1 


Mr.  Leon  Bourgeois  presiding. 

The  minutes  of  the  last  meeting  are  read  and  approved.  At  the  suggestion 
of  his  Excellency  Count  Nigra  the  committee  desires  to  express  its  thanks  to 
Baron  d'Estournelles  de  Constant  for  the  preparation  of  these  minutes. 

Mr.  Holls  declares  in  the  name  of  the  delegation  of  the  United  States  of 
America  that  although  that  delegation  participates  in  the  committee  in  working  out 
a  plan  for  the  permanent  tribunal  upon  the  basis  of  the  proposal  of  Sir  Julian 
Pauncefote,  the  American  delegation  does  not  intend  of  course  to  give  up  its 
preference  for  its  own  plan.  It  therefore  reserves  the  right  to  present  its  plan, 
if  it  seems  proper,  either  to  the  Third  Commission  or  to  a  plenary  session  of  the 
Conference,  as  an  amendment  to  the  report  of  the  committee. 

This  declaration  by  Mr.  Holls  is  noted  upon  the  records  of  the  meeting. 


Examination  upon  Its  First  Reading  of  the  Plan  for  the  "  Permanent  Tri- 
bunal of  Arbitration  "  by  His  Excellency  Sir  Julian  Pauncefote 

(Continued)^ 

Chevalier  Descamps,  who  was  commissioned  to  submit  to  the  committee 
a  new  version  of  Article  2  of  the  plan  of  Sir  Julian  Pauncefote,  reads  the 
following  text  which  is  adopted : 

Article  2 

A  central  bureau  is  established  at  The  Hague,  through  the  efforts  and 
under  the  supreme  supervision  of  the  Government  of  the  Netherlands. 
This  bureau  is  placed  under  the  direction  of  a  resident  secretary  general. 
It  serves  as  registry  for  the  arbitration  tribunal.  It  is  the  channel  for  the 
communications  relative  to  the  meetings  of  the  tribunal.  It  has  custody 
of  the  archives,  and  conducts  all  the  administrative  business. 

Upon  the  suggestion  of  Mr.  Holls,  it  is  understood  that  certain  points  in 
Article  2  are  reserved  for  discussion  later  in  connection  with  Article  6. 
Article  3  is  read  and  adopted  in  the  following  form: 

1  Hall  of  the  Truce.  Present :  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; their  Excellencies  Count  Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the 
Third  Commission;  Chevalier  Descamps,  president  and  reporter;  Messrs.  Asser,  Baron 
d'Estournelles  de  Constant,  Holls,  Lammasch,  Martens,  Odier,  Doctor  Zorn,  members 
of  the  committee  of  examination. 

2  Annex  2,  B. 

720 


SEVENTH  MEETING,  JUNE  12,  1899  721 

Article  3 

Within  the  three  months  following  the  ratification  of  the  present  act^ 
each  signatory  Power  shall  select  two  persons  of  known  competency  in 
international  law,  of  the  highest  moral  reputation,  and  disposed  to  accept 
the  duties  of  arbitrator.  The  persons  thus  selected  shall  be  inscribed  as. 
members  of  the  tribunal,  in  a  list  which  shall  be  notified  to  all  the  signatory 
Powers  by  the  central  bureau. 

Two  or  more  States  may  agree  on  the  selection  in  common  of  twa 
members.     The  same  person  can  be  selected  by  diflferent  States.     The  mem- 
bers of  the  tribunal  are  appointed  for  a  period  of  six  years.     Their  appoint- 
ment can  be  renewed. 
[24]   In  case  of  the  death  or  retirement  of  a  member  of  the  tribunal  his  place 
will  be  filled  according  to  the  same  rules. 

Article  4 

The  President  reads  Article  4. 

As  indicated  by  Chevalier  Descamps,  Article  4  will  be  followed  by  Article  4 
bis  concerning  the  fixing  of  the  meeting  place  of  the  tribunal. 

The  committee  passes  to  the  discussion  of  Article  4. 

Mr.  Asset  asks  leave  to  present  a  question  to  Sir  Julian  Pauncefote  ia 
order  to  learn  how  the  third  arbitrator  will  be  designated. 

Mr.  Asser  fears  that  if  Sir  Julian  Pauncefote's  text  is  adopted,  a  party 
might  easily  avoid  arbitration,  even  obligatory  arbitration.  Article  4  in  fact 
furnishes  him  with  the  means ;  with  the  aid  of  this  article  could  not  one  party  in- 
definitely hold  up  the  formation  of  the  tribunal  and  consequently  stop  every- 
thing ? 

His  Excellency  Sir  Julian  Pauncefote  replies  that  the  new  tribunal  will  be 
governed  either  by  the  parties  themselves,  where  there  is  a  compromis,  or,  in  the 
absence  of  a  compromis,  by  the  code  of  procedure  which  will  be  added  to  the  act. 

His  Excellency  Count  Nigra  reads  as  an  example  Article  3  of  the  Treaty  of 
permanent  arbitration  concluded  between  Italy  and  the  Argentine  Republic.^ 

This  article  meets  exactly  the  objection  raised  by  Mr.  Asser. 

Mr.  Leon  Bourgeois  recognizes,  as  does  Mr.  Asser,  that  there  is  a  defect 
in  Article  4,  and  he  reserves  the  right  to  return  to  the  question. 

Chevalier  Descamps  proposes  a  draft  beginning  with  these  words :  "  The 
litigant  parties  choose  one  or  more  arbitrators  from  this  list."  This  draft  no 
doubt  is  better  fitted  to  the  formation  of  a  more  complete  organization  than  that 
contemplated,  that  is,  to  the  constitution  of  a  court,  but  ChevaHer  Descamps 
believes  nevertheless  that  it  may  be  suggested  to  the  committee. 

Mr.  Asser  proposes  as  an  alternative,  in  case  an  agreement  regarding  the 
choice  of  the  third  arbitrator  could  not  be  reached  in  any  other  manner,  to  resort 
to  the  drawing  of  lots. 

Mr.  Rolls  declares  that  it  is  not  permissible  in  any  case  to  impose  upon  one 
of  the  parties  a  third  arbitrator  which  it  would  not  desire  to  have. 

Mr.  Lammasch  is  of  the  opinion  that  the  following  might  be  agreed  upon; 
if  the  States  cannot  agree  in  the  choice  of  a  third  arbitrator,  the  choice  will  be 
left  to  the  heads  of  the  neutral  States,  that  is,  the  King  of  the  Belgians,  the  Grand 
Duke  of  Luxemburg,  and  the  President  of  the  Swiss  Confederation. 

Mr.  Hells  believes  that  the  United  States  would  not  accept  this  exclusively 
European  arrangement. 

1  Treaty  of  July  23,  1898. 


722  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

Mr.  Martens  believes  that  the  Russian  plan  has  provided  for  the  difficulty. 

Mr.  Asser  thinks  that  these  opinions  are  in  fact  sufficient  in  cases  where 
good-will  exists,  but  not  in  a  contrary  case. 

The  President  calls  attention  to  the  fact  that  the  question  of  the  third  arbi- 
trator is  not  peculiar  to  the  plan  for  the  permanent  tribunal.  We  might  there- 
fore return  to  it  when  discussing  generally  the  code  of  arbitration.  This  sugges- 
tion is  adopted  by  the  committee. 

Mr.  Martens  requests  that  the  following  sentence  be  omitted :  "  They  shall 
also  have  the  power  to  add  to  their  number  other  arbitrators  than  those  whose 
names  appear  on  the  list,  ..."  for  this  power  to  add  names  would  take  away 
from  the  list  a  great  deal  of  its  authority.  If  recourse  may  indifferently  be  had, 
now  to  members  who  are  on  the  list,  and  again  to  others,  the  list  would  quickly 
fall  into  disuse. 

Mr.  Hells  supports  this  point  of  view. 

Chevalier  Descamps  states  that  this  omission  would  be  regrettable  from  a 
practical  point  of  view  and  in  the  adaptation  of  the  tribunal  to  disputes  of  vari- 
ous kinds.  In  certain  respects  we  could  consider  the  supplementary  arbitrators 
as  advisers  or  necessary  technical  delegates. 

Mr.  Martens  replies  that  in  that  case  it  is  useless  to  talk  of  them,  because 
the  ordinary  tribunals  may  have  recourse  to  technical  investigators  and  to  experts 
without  changing  their  composition  for  that  purpose. 

The  President  is  of  the  opinion  that  we  might  also,  for  the  same  reasons  as 
stated  above,  postpone  the  discussion  of  the  question  asked  by  Mr.  Martens 

until  the  discussion  of  the  code  of  arbitration. 
[25]   He  puts  to  vote  the  two  paragraphs  of  Article  4  which  are  successively 
adopted  in  the  following  form  under  the  numbers  4  and  4  bis. 

Article  4 

The  signatory  Powers  which  desire  to  have  recourse  to  the  tribunal 
for  the  settlement  of  differences  which  have  arisen  between  them,  shall 
notify  such  desire  to  the  secretary  general  of  the  bureau  who  shall  furnish 
them  without  delay  the  list  of  the  members  of  the  tribunal.  They  will  select 
from  this  list  such  number  of  arbitrators  as  may  be  agreed  upon  in  the 
compromis.  In  default  of  provisions  upon  this  point  (in  the  compromis), 
arbitrators  shall  be  designated  from  this  list  according  to  the  rules  fixed  by 
Articles  ...  of  the  code  of  arbitration.  The  arbitrators  thus  chosen  shall 
form  the  tribunal  for  this  arbitration. 

They  shall  meet  on  the  date  fixed  by  the  parties  in  dispute. 

Article  4  his 

The  tribunal  shall  sit  ordinarily  at  The  Hague,  but  it  shall  have  the 
power  to  sit  elsewhere  and  to  change  its  meeting  place  according  to  cir- 
cumstances and  its  convenience  or  that  of  the  parties  in  dispute. 

Returning  to  the  discussion  of  Article  4,  Mr.  Hells  proposes  the  following 
amendment:  "In  case  the  court  is  composed  of  but  three  judges  none  of  them 
can  be  a  native,  subject  or  citizen  of  the  parties  in  dispute." 

Mr.  Asser  seconds  this  proposal. 

His  Excellency  Count  Nigra  reads  Article  3  of  the  treaty  already  referred 
to  between  Italy  and  the  Argentine  Republic ;  it  is  drawn  up  along  the  lines  of 
Mr.  HoLLs'  amendment. 


SEVENTH  MEETING,  JUNE  12,  1899  ■  723 

Mr.  Martens  is  of  the  opinion  that  the  amendment  deserves  the  attention  of 
the  committee,  and  that  it  is  proper  to  reject  it  expressly:  because  the  plan  which 
the  Conference  will  prepare  will  have  more  chances  of  acceptance  by  the  inter- 
ested Powers,  if  each  of  them  finds  itself  authorized  to  have  a  representative  on 
the  tribunal. 

Mr.  Odier  replies  that,  according  to  Mr.  Holls,  it  is  only  a  question  of  the 
case  where  there  are  but  three  arbitrators.  Now,  in  that  case,  if  each  of  the 
arbitrators  is  of  the  nationality  of  the  parties  they  will  act  as  advocates  rather 
than  as  judges,  and  there  will  in  reality  be  only  a  single  arbitrator. 

Mr.  Holls  supports  this  view,  and  adds  that  such  an  organization  would 
make  impossible  all  compromise  and  any  spirit  of  conciliation ;  neither  of  the  two 
arbitrators  being  either  willing  or  able,  under  certain  conditions,  to  make  conces- 
sions. 

Chevalier  Descamps  notes  the  delicacy  of  the  question.  Considering  the 
tendencies  of  States,  which  do  not  wish  to  renounce  their  sovereignty,  and  which 
seek  the  maximum  guaranty  possible,  it  is  very  probable,  as  Mr.  Martens  thinks, 
that  each  of  them  will  insist  absolutely  upon  having  a  judge  of  its  own  on  the 
tribunal.  Chevalier  Descamps  is  therefore  of  the  opinion  that  in  the  interest  of 
the  very  cause  which  we  are  here  to  promote,  it  would  be  wise  to  make  this  con- 
cession, which  is  also  in  accordance,  in  a  great  measure,  with  precedents  in  the 
matter  of  the  formation  of  arbitration  tribunals.  It  should  not  be  forgotten  that 
international  society  is  a  society  of  coordination  among  sovereign  States,  and  we 
should  not  model  its  institutions  too  closely  after  the  principles  adopted  in  soci- 
eties of  subordination  as  in  the  different  national  organizations. 

Mr.  Holls  admits  this  point  of  view  in  the  case  of  tribunals  of  more  than 
three  members,  but  not  when  there  are  only  three,  because  it  results  in  reality,  as 
Mr.  Odier  says,  in  reducing  the  tribunal  to  a  single  judge. 

Mr.  Leon  Bourgeois  remarks  that  the  designation  of  a  judge  by  each  inter- 
ested party  would,  in  his  view,  be  not  only  a  wise  concession  but  a  sort  of  natural 
and  legitimate  transition  from  diplomatic  communication  to  judicial  argument;  he 
proposes  therefore  that  since  these  considerations  are  not  peculiar  to  the  perma- 
nent tribunal,  this  discussion  might  be  postponed,  as  in  the  case  of  the  preceding 
questions,  to  the  time  when  the  examination  of  the  articles  of  the  code  of  arbi- 
tration is  undertaken. 

Dr.  Zorn  asks  permission  to  call  attention  to  the  fact  that  the  reservation  of 
Mr.  Holls  seems  to  him  to  apply  to  a  civil  suit,  since  no  one  may  be  the  judge 
of  his  own  case,  but  in  the  case  of  an  international  court  it  is  an  entirely  different 
thing:  in  his  view  it  is  necessary  that  one  of  the  representatives  of  the  States  in 
dispute  be  admitted  to  the  tribunal  even  if  there  are  only  three  members;  the 
umpire  will  decide. 

Dr.  Zorn  consequently  supports  the  views  of  Messrs.  Martens,  Leon 
Bourgeois  and  Chevalier  Descamps. 

It  is  therefore  understood  that  the  question  is  reserved  until  the  discussion  of 
the  code  of  arbitration. 

Mr.  Holls  is  anxious  to  declare  that  the  principal  reason  for  his  proposition 
is  his  Government's  keen  desire  that  the  tribunal  of  arbitration  shall  not  be  too 
small. 

Article  5 

The  President  reads  Article  5. 


724  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

Mr.  Holls  asks  whetherthe  time  is  not  come  to  insert  the  following  amend- 
[26]  ment,  commencing  with  the  words : 

Any  difference,  whatever  it  may  be,  between  the  signatory  Powers  may, 
by  common  agreement,  be  submitted  by  the  interested  nations  to  the  judgment 
of  this  international  tribunal,  and  in  every  case  where  the  tribunal  has 
jurisdiction  the  interested  parties  shall  bind  themselves,  in  resorting  to  it, 
to  accept  its  award. 

Chevalier  Descamps  calls  attention  to  the  fact  that  Article  24  of  the  code  of 
procedure  contemplates  this  provision.  The  question  is  whether  there  is  any 
reason  to  leave  this  provision  in  the  code. 

His  Excellency  Sir  Julian  Pauncefote  calls  attention  to  the  fact  that  Sec- 
tion 2  of  the  appendix  to  Article  13  of  the  Russian  draft  also  very  particularly 
contemplates  this  provision. 

After  these  remarks,  Mr.  Holls  agrees  to  reserve  the  question. 

Article  5  is  adopted  in  the  following  form : 

Any  State,  although  not  signatory  to  the  present  act,  may  have  recourse 
to  the  tribunal  on  the  terms  prescribed  in  the  regulations. 

Article  6 

The  President  reads  Article  6. 

His  Excellency  Count  Nigra  asks  that  the  amendment  of  the  Russian  Govern- 
ment to  which  he  agrees  be  read. 

The  President  announces  the  order  of  business  for  the  next  meeting  which 
will  take  place  Friday,  June  16,  at  2 :00  o'clock.  Hall  of  the  Truce : 

1.  Continuation  of  the  discussion  of  Article  6  of  the  proposition  of  Sir 
Julian  Pauncefote  —  of  the  proposition  of  Mr.  Descamps  —  and  of  the  Rus- 
sian amendments ; 

2.  Article  7. 

The  meeting  adjourns. 


EIGHTH    MEETING 

JUNE  21,  1899  1 


Chevalier  Descamps  presiding. 

The  order  of  business  calls  for  the  continuation  of  the  discussion  of  Article 
6  of  the  Pauncefote  plan. 


Examination,  upon  Its  First  Reading,  of  the  Plan  for  the  "  Permanent 

Tribunal  of  Arbitration "  by  His  Excellency  Sir  Julian 

Pauncefote  (Continued)  ^ 

Article  6  (Continuation  of  the  discussion) 

Sir  Julian  Pauncefote  proposes  to  substitute  for  the  text  which  he  set  forth 
to  the  committee  the  following  draft  which,  it  seems  to  him,  should  be  approved 
in  its  general  lines : 

A  permanent  council  composed  of  the  representatives  of  the  signatory 
Powers  residing  at  The  Hague,  and  of  the  Netherland  Minister  for  Foreign 
Affairs  shall  be  instituted  in  this  town  as  soon  as  possible  after  the  ratifica- 
tion of  the  present   Convention.     This   council   shall   be   commissioned   to 

establish  and  organize  a  central  bureau  which  will  be  under  its  direction 
[27]   and  control.     It  shall  proceed  to  the  installation  of  the  tribunal;  it  shall 

examine  from  time  to  time  the  rules  necessary  for  the  proper  operation 
of  the  central  bureau.  It  will  also  settle  all  questions  which  may  arise 
with  regard  to  the  operations  of  the  tribunal  or  it  will  refer  them  to  the 
signatory  Powers.  It  will  have  absolute  power  over  the  appointment,  sus- 
pension, or  dismissal  of  the  officers  and  employees  of  the  central  bureau. 
It  will  fix  their  payments  and  salaries,  it  will  control  the  general  expendi- 
ture. At  a  meeting  duly  summoned  the  presence  of  five  members  will  be 
sufficient  to  render  valid  the  discussion,  and  the  decisions  will  be  taken  by  a 
majority  of  votes. 

The  President  opens  the  discussion  of  this  new  draft. 

He  recalls  that  the  idea  of  resort  to  the  diplomatic  corps  of  a  country,  which 
is  the  seat  of  an  international  institution,  has  already  been  suggested  at  the  Con- 
ference of  Brussels  of  1889-1890  regarding  the  suppression  of  the  African 
slave  trade. 

^Hall  of  the  Truce.  Present:  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; Jonkheer  van  Karnebeek,  vice  president  of  the  Conference ;  their  Excellencies  Count 
Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the  Third  Commission;  Messrs.  As- 
SER,  Baron  d'Estournelles  de  Constant,  Holls,  Lammasch,  Odier,  Doctor  Zorn,  members 
of  the  committee  of  examination.    Present  at  the  meeting:     Mr.  Easily. 

2  Annex  2,  B. 

725 


726  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

Mr.  Asser  cites  another  precedent  along  the  same  line:  the  Convention  of 
1888  concerning  the  free  use  of  the  Suez  Canal.  As  to  the  principle  itself  of  the 
proposal  of  Sir  Julian  Pauncefote,  Mr.  Asser  does  not  think  he  can  speak 
definitely  upon  the  matter  without  instructions  from  his  Government;  however, 
it  is  worth  being  examined  with  a  great  deal  of  interest.  Mr.  Asser  thinks  that 
instead  of  saying  "  representatives  .  .  .  residing  at  The  Hague,"  we  should  desig- 
nate them  as  the  "  representatives  .  .  .  accredited  to  The  Hague." 

His  Excellency  Mr.  Staal  sees  only  advantages  to  be  gained  in  supporting  the 
proposition  of  Sir  Julian  Pauncefote. 

Dr.  Zorn  believes  that  this  provision  would  facilitate  acceptance  of  the 
Final  Act  by  the  Governments.  He  desires,  in  any  case,  that  the  council  be 
composed  exclusively  of  the  diplomatic  representatives  not  only  accredited  but 
residing  at  The  Hague. 

Mr.  d'Estournelles  attaches  special  importance  to  the  word  "  resident "  and 
the  committee  shares  this  view. 

Mr.  Asser  proposes  as  a  preliminary  precaution  to  provide  in  any  case  that 
the  permanent  council  shall  begin  by  drawing  up  its  rules  of  procedure  in  order 
that  we  shall  be  very  sure  that  its  meetings  will  be  regularly  organized  and  con- 
stituted. 

Mr.  Holls  endorses  this  proposition. 

His  Excellency  Count  Nigra  and  all  the  members  of  the  committee  adhere 
to  the  principle  of  the  propositions  as  contained  in  the  new  draft  of  Article  6  by 
Sir  Julian  Pauncefote,  subject  of  course  to  the  reservation  that  there  should 
be  a  further  examination  and  that  the  Governments  represented  in  the  committee 
shall  express  their  approval  thereof. 

The  committee  passes  to  the  examination  of  the  new  draft  of  Article  6  of  the 
Pauncefote  plan. 

The  President  reads  the  first  sentence  of  the  new  Article  6.     It  is  adopted. 

As  to  the  second  sentence,  Mr.  Asser  is  of  the  opinion  that  it  would  be  neces- 
sary to  fix  a  period  for  the  installation  of  the  central  bureau. 

After  discussion  the  committee  declines  to  specify  any  period. 

The  third,  fourth,  fifth,  and  sixth  sentences  of  the  new  Article  6  are  adopted 
in  the  form  given  below. 

Finally,  at  the  suggestion  of  Mr.  Asser,  it  is  decided  to  add  a  seventh  sen- 
tence containing  the  stipulation  already  provided  for  in  the  Russian  plan. 

The  complete  text  of  Article  6  is  finally  adopted  upon  the  first  reading  in  the 
following  form: 

A  permanent  council  composed  of  the  diplomatic  representatives  of 
the  high  contracting  Parties  residing  at  The  Hague,  and  of  the  Netherland 
Minister  for  Foreign  Affairs  who  shall  be  the  president  thereof,  shall  be  in- 
stituted in  this  town  as  soon  as  possible  after  the  ratification  of  the  present 
act.  This  council  will  be  charged  with  the  establishment  and  organization 
of  the  central  bureau  which  will  be  under  its  direction  and  control.  It  will 
notify  to  the  Powers  the  constitution  of  the  tribunal  and  will  provide  for  the 
installation  of  the  latter.  It  will  settle  its  rules  of  procedure  as  well  as  the 
rules  necessary  for  the  proper  operation  of  the  central  bureau.  It  will  also 
settle  all  questions  which  may  arise  with  regard  to  the  operations  of  the 
tribunal  or  it  will  refer  them  to  the  contracting  Powers.  It  will  have  absolute 
powers  over  the  appointment,  suspension  or  dismissal  of  the  officials  and 
employees  of  the  central  bureau. 


EIGHTH  MEETING,  JUNE  21,  1899  727 

It  will  fix  their  payments  and  salaries  and  control  the  general  expendi- 
ture. 

At  a  meeting  duly  summoned  the  presence  of  five  members  will  be  suffi- 
cient to  render  the  discussions  valid,  and  the  decisions  will  be  taken  by  a 
majority  of  votes.  The  council  will  render  annually  to  the  contracting  par- 
ties an  account  of  its  activities  as  well  as  of  the  labors  and  expenses  of  the 
bureau. 

Article  7 

The  President  reads  Article  7  of  Sir  Julian  Pauncefote's  plan. 
After  a  general  discussion  vote  on  this  article  is  reserved ;  the  members  of  the 
committee  are  to  solicit  the  opinions  of  their  colleagues  of  the  Third  Commission 

upon  this  subject. 
[28]   The  order  of  business  calls  for  the  discussion  of  Articles  14,  15,  16,  17  and 
18  of  the  Russian  plan  for  "  International  commissions  of  inquiry." 


Examination,  upon  Its  First  Reading,  of  the  Russian  Plan  Relating  to 
"  International  Commissions  of  Inquiry  "  ^ 

Article  14 

The  President  reads  Article  14. 

Mr.  Lammasch  does  not  fail  to  recognize  the  value  of  this  institution  of 
international  commissions  of  inquiry ;  they  will  certainly  be  very  beneficial,  but 
to  declare  them  obligatory  is  to  go  very  far  indeed.  For  we  are  here  making  an 
innovation  in  the  law  of  nations.  The  duties  which  this  Article  14  imposes  upon 
States  are  serious,  especially  if  we  compare  with  this  Article  14  the  obligations 
formally  provided  in  Article  16  which  implies  in  a  way  an  abnegation  of  national 
sovereignty. 

Mr.  Lammasch  proposes  therefore  to  make  the  provisions  of  Article  14  not 
obligatory  but  voluntary. 

The  following  words  could  be  written  in  line  5  of  Article  14 :  "  the  signatory 
Powers  deem  it  expedient  that  the  interested  Governments  agree,  etc.,"  and  use 
^'  for  "  instead  of  "  in  "  at  the  beginning  of  the  article. 

Mr.  Asser  observes  that  the  institution  of  international  commissions  of  in- 
quiry should  be  extended  to  all  differences  relating  to  questions  of  fact,  and  should 
not  therefore  be  limited  to  the  ascertainment  of  local  circumstances. 

Mr.  Holls  is  of  the  same  opinion  as  Mr.  Lammasch.  However,  he  beheves 
that  the  Governments  should  not  be  contented  with  providing  for  these  commis- 
sions, but  they  should  recommend  that  the  parties  have  recourse  thereto. 

Dr.  Zom  shares  the  opinion  of  Messrs.  Lammasch  and  Holls. 

The  committee  having  declared  itself  in  favor  of  this  view,  the  following 
text  is  adopted  upon  the  first  reading,  and  subject  to  the  approval  of  the  inter- 
ested Governments : 

For  cases  which  may  arise  between  the  signatory  States  where  differ- 
ences of  opinion  with  regard  to  local  circumstances  have  given  rise  to  a 
dispute  of  an  international  character  which  cannot  be  settled  through  the 
ordinary  diplomatic  channels,  but  wherein  neither  the  honor  nor  the  vital 
interests  of  these  States  is  involved,  the  signatory  States  have  agreed  to 

1  Annex  1. 


728  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

recommend  to  the  interested  Governments  the  constitution  of  an  interna- 
tional commission  of  inquiry  in  order  to  ascertain  the  circumstances  form- 
ing the  basis  of  the  disagreement  and  to  elucidate  all  the  facts  of  the  case  by 
means  of  an  impartial  and  conscientious  investigation  on  the  spot. 

Article  15 

Mr.  Hells  fears  that  this  provision  setting  up  two  members  on  each  side 
separated  by  a  single  president,  will  run  the  risk  of  serious  disagreement.  He 
is  of  the  opinion  that  in  general  the  two  commissioners  chosen  on  each  side  will 
agree.  However  that  may  be  a  single  president  will  not  have  sufficient  authority 
to  make  his  opinion  accepted  in  the  two  opposing  camps. 

This  is  why  he  proposes  to  increase  the  number  of  neutral  commissioners 
and  to  set  the  number  at  three  at  least.  The  opinion  of  these  three  neutrals  would 
be  imposed  very  differently  from  that  of  a  single  man.  The  vote  of  the  president, 
dividing  the  four  commissioners,  forming  two  groups,  would  not  have  sufficient 
authority.  Three  votes  cast  on  the  same  side  would  produce  more  of  an  impres- 
sion upon  public  opinion. 

Mr.  Easily  observes  that  the  proposition  of  Mr.  Holls  tends  to  form  a  very 
important  commission  for  difficulties  which  will  often  be  of  an  insignificant  char- 
acter: he  cites,  for  example,  those  which  occur  so  frequently  along  the  frontier 
of  two  countries. 

His  Excellency  Sir  Julian  Pauncefote  is  of  the  opinion  that  it  is  proper  to 
leave  to  the  parties  themselves  the  duty  of  settling  these  details. 

Dr.  Zorn  proposes  the  addition  of  the  words  "  unless  otherwise  stipulated." 

Mr.  Lammasch  believes  that  this  question  will  come  up  again  when  Articles 
4  and  5  of  the  code  of  arbitration  are  discussed. 

The  committee  adopts  Article  15  with  this  reservation  after  having  decided 

however  to  add  to  the  article  these  words  "  unless  otherwise  stipulated  "  and  to 

modify  the  last  sentence  in  accordance  with  the  suggestions  of  Mr.  Lammasch. 

The  draft  of  Article  15  adopted  at  the  first  reading  therefore  is  as  follows: 

[29]  Unless  otherwise  stipulated,  the  international  commissions  are  formed 
as  follows:  each  interested  Government  names  two  members  and  the  four 
members  together  choose  a  fifth  member,  who  is  also  the  president  of  the 
commission.  In  case  of  equal  vote  for  the  selection  of  the  president  the 
procedure  contained  in  Articles  4  and  5  of  the  code  of  arbitration  will  be 
followed. 

Article  16 

A  general  discussion  takes  place  with  regard  to  the  form  of  this  article. 

Messrs.  Holls,  Baron  d'Estournelles  and  Dr.  Zorn  point  out  the  dan- 
gers of  this  draft:  who  indeed  will  be  judge  of  what  shall  be  the  necessary  means 
and  facilities?  It  would  seem  difficult  and  dangerous  to  subscribe  to  such  an 
obligation  because  it  may  reduce  a  State  to  the  alternative  of  having  to  furnish  or 
to  refuse  information  relating  to  its  own  security. 

Chevaher  Descamps  proposes  to  add  these  words  to  this  article :  "  furnish 
to  the  latter  as  fully  as  they  may  think  possible." 

He  points  out  an  analogous  provision  in  Article  81  of  the  General  Act  of  the 
Conference  of  Brussels  in  1890. 

This  proposal  is  adopted. 

The  draft  of  Article  16  then  undergoes  several  modifications  in  detail  and 
becomes  the  following: 


EIGHTH  MEETING,  JUNE  21,  1899  729 

The  Governments  which  have  appointed  the  commissioners  furnish 
to  the  latter  so  far  as  they  may  think  possible  all  means  and  facilities  neces- 
sary for  the  exact  and  complete  understanding  of  the  facts  in  question. 

Article  17  is  adopted  in  the  following  form : 

Article  17 

The  international  commission  of  inquiry  communicates  its  report  to 
the  interested  Governments. 

Article  18 

Mr.  Asser  considers  this  article,  together  with  Articles  15,  16,  and  17,  as 
valuable  when  Article  14  provided  for  an  obligation ;  but  the  situation  is  no 
longer  the  same  since  we  have  just  decided  that  this  article  should  have  a  volun- 
tary character. 

Dr.  Zorn  is  also  of  this  opinion  when  looking  at  the  matter  from  the  jurid- 
ical view-point,  but  we  must  not  forget  that  these  articles  possess  another  very 
important  characteristic,  i.  e.,  they  act  as  a  warning.  Bearing  that  in  mind,  it  is 
not  necessary,  as  Mr.  Asser  points  out,  to  enter  too  much  into  details,  since  all  the 
provisions  of  this  chapter  have  only  a  voluntary  character  and  consequently  leave 
to  the  interested  parties  entire  freedom  to  modify  them  at  their  pleasure. 

Mr.  d'Estournelles  proposes  in  any  case  until  future  decisions  to  the  con- 
trary to  strike  out  the  last  clause  of  Article  18.  It  is  useless  to  provide  for  and 
to  reserve  explicitly  the  right  to  resort  to  war  in  an  act  of  the  Peace  Conference. 

The  committee  shares  this  view,  Article  18  will  consequently  end  with  the 
words  "  mediation  and  arbitration."  The  text  adopted  therefore  becomes  the 
following : 

The  report  of  the  commission  of  inquiry  has  in  no  way  the  character  of 
an  award ;  it  leaves  the  disputing  Governments  entire  power  either  to  conclude 
a  settlement  in  a  friendly  way  upon  the  basis  of  the  above-mentioned  report, 
or  to  resort  to  mediation  and  arbitration. 

The  next  session  will  be  held  on  Friday,  June  23,  at  2  o'clock. 
The  order  of  business  is  the  discussion  of  arbitral  procedure. 
The  meeting  adjourns. 


[30] 

NINTH   MEETING 

JUNE  23,  1899  ^ 


Chevalier  Descamps  presiding. 

The  minutes  of  the  last  meeting  are  read  and  approved. 

Mr.  Martens  gives  to  the  committee  with  his  respects  ten  copies  of  a  code 
drawn  up  by  the  British  and  Venezuelan  Governments  for  the  purposes  of  an 
arbitration  over  which  he  had  the  honor  to  preside  in  Paris. 

The  interesting  feature  about  this  document  is  that  it  bears  a  great  similarity 
to  the  draft  which  we  are  to  discuss  to-day. 

The  committee  thanks  Mr.  Martens  for  this  communication. 

With  regard  to  the  last  meeting  at  which  he  was  not  present,  due  to  his 
absence  in  Paris,  Mr.  Martens  desires  to  make  some  remarks  which  may  be  sum- 
marized as  follows: 

Article  14  of  the  Russian  plan:  International  commissions  of  inquiry  are  not 
an  innovation ;  they  have  already  proved  that  they  may  be  of  service  when  a 
controversy  breaks  out  between  two  States  both  acting  in  good  faith,  for  example 
when  a  boundary  matter  arises  between  them.  Opinion  is  aroused  all  the  more  if 
the  question  is  unexpected  and  if  opinion  is  uninformed  because  it  is  ignorant  of 
the  origin  and  the  real  cause  of  the  dispute.  It  is  at  the  mercy  of  momentary 
impressions  and  there  are  many  chances  that,  favored  by  this  ignorance,  minds 
will  be  irritated  and  the  dispute  will  become  a  bitter  one ;  that  is  why  we  desire 
to  provide  for  the  contingency  of  the  commission  having  for  its  purpose:  first 
and  above  all,  to  seek  and  make  known  the  truth  as  to  the  cause  of  the  affair,  and 
as  to  the  materiality  of  the  facts.  Such  is  the  principal  role  of  the  commission ; 
it  is  named  to  make  a  report,  and  not  to  make  decisions  which  may  in  any  way 
bind  the  parties.  But  while  it  works  for  the  purposes  of  making  a  report,  time  is 
gained,  and  that  is  the  second  object  which  we  have  in  view.  Spirits  will  become 
calmer  and  the  dispute  will  cease  to  be  so  acute. 

Now  this  double  and  important  practical  result  cannot  be  obtained  except  on 
one  condition,  and  that  is  that  the  interested  Governments  will  agree  to  bind  them- 
selves reciprocally  to  name  these  commissions,  with  the  reservation  of  course  that 
vital  questions  and  the  honor  of  the  States  in  dispute  will  not  be  affected  thereby. 

If  we  limit  ourselves  to  the  mere  utterance  of  a  platonic  voeu,  to  a  recom- 
mendation that  these  commissions  be  appointed,  we  shall  miss  the  goal  at  which 
we  are  aiming,  we  shall  have  merely  expressed  our  intention  once  again ;  the 
appointments  should  therefore  be  obligatory. 

1  Hall  of  the  Truce.  Present :  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; Jonkheer  van  Karnebeek,  vice  president  of  the  Conference;  their  Excellencies  Count 
Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the  Third  Commission;  Messrs.  As- 
SER,  Baron  d'Estournelles  de  Constant,  Holls,  Lammasch,  Odier,  Martens,  Doctor  Zorn, 
members  of  the  committee  of  examination.    Assisted  at  the  meeting:    Mr.  Easily. 

730 


NINTH  MEETING,  JUNE  23,  1899  731 

The  President  believes  that  before  passing  to  the  order  of  business,  the  com- 
mittee should  first  express  itself  with  regard  to  the  remarks  of  Mr.  Martens. 
It  would  seem  that  this  might  be  taken  care  of  by  adopting  a  compromise  term, 
for  example  by  adding  to  the  original  text  of  Article  14  of  the  Russian  plan  these 
words :  "  if  circumstances  allow  "  after  the  words  "  agree  to  form." 

Mr.  Asser  is  of  this  opinion  and  at  the  last  session  he  expressed  an  opinion 
similar  to  that  of  Mr.  Martens. 

Mr.  Lammasch  sees  no  objection  to  joining  personally  in  the  compromise 
proposal  of  Chevalier  Descamps  but  the  text  of  Article  14  regarding  "  commis- 
sions of  inquiry  "  seems  too  vague  to  him ;  this  article  would  gain  by  borrowing 
a  little  more  precision,  for  example  from  Article  10  of  the  Russian  draft;  Could 
you  not  point  out  for  instance  some  of  the  cases  where  the  formation  of  commis- 
sions would  be  obligatory  ? 
[31]  Dr.  Zorn  accepts  the  terms  proposed  by  Chevalier  Descamps,  "so  far  as 
circumstances  allow,"  but  he  asks  if  we  might  not  reserve  the  draft  of  Article 
14  until  after  we  have  decided  upon  the  form  of  Article  10,  because  of  the  connec- 
tion existing  between  the  two  articles  which  he  too  has  noted. 

Chevalier  Descamps  believes  that  this  is  only  an  apparent  connection;  these 
two  Articles  10  and  14  contemplate  two  very  different  states  of  facts. 

After  a  general  discussion  the  committee  reaches  an  agreement  to  revise  and 
redraft  as  follows  the  text  of  Article  14,  adopted  at  the  last  meeting:  after  the 
words  "  agree  to  form  "  will  be  added  these  "  so  far  as  circumstances  allow." 

As  to  the  last  sentence  of  Article  18  and  the  remark  of  Baron  d'Estour- 
NELLES,  at  the  conclusion  of  which  this  sentence  was  stricken  out,  Mr.  Martens 
does  not  insist  that  it  be  retained,  but  he  desires  to  call  attention  to  the  fact  that 
in  the  mind  of  the  originator  of  the  plan  the  subject  was  not  war  but  simply 
measures  of  reprisal  or  retortion. 

This  remark  of  Mr.  Martens  is  entered  upon  the  minutes  of  the  meeting. 
The  order  of  business  calls  for  the  discussion  of  the  code  of  arbitration. 
Before  reading  its  articles.  Chevalier  Descamps  thinks  he  should  review  the 
exact  scope  of  the  work  which  it  is  the  duty  of  the  committee  to  prepare.  There 
are  several  series  of  questions  to  be  studied  successively,  he  says,  but  these  ques- 
tions form  a  whole  which  must  be  properly  arranged.  Here  is  the  general  scheme 
of  the  Convention  to  be  drafted : 

An  initial  provision  concerning  the  maintenance  of  general  peace. 
Then  follows  a  series  of  provisions  relating  to  good  offices  and  mediation. 
A  group  of  articles  concerning  international  commissions  of  inquiry  forms  a 
third  division  of  the  subject  matter. 

Finally  we  come  to  the  articles  concerning  international  arbitration  which  it 
is  convenient  to  arrange  under  the  following  three  heads : 

I.  System  of  arbitration. 

II.  Permanent  Court  of  Arbitration. 

III.  Arbitral  procedure. 

All  these  provisions  have  for  their  purpose  the  pacific  settlement  of  inter- 
national disputes,  and  from  this  point  of  view  form  a  first  attempt  at  an  organic 
code  of  peace. 

None  of  these  matters  can  or  should  be  considered  independently  of  the 
others :  the  articles  which  concern  them  should  without  distinction  appear  in  their 
order  and  in  their  place,  not  in  an  appendix,  but  in  the  very  body  of  the  act  of  the 
Conference. 


732  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

As  to  jurisdiction  and  procedure,  it  is  well  understood  that  the  States  will 
preserve  entire  liberty  to  adopt  among  themselves  by  common  agreement  such 
other  jurisdiction  or  such  other  procedure  as  may  appear  preferable  to  them,  but 
we  must  offer  them  the  result  of  our  work  and  our  research,  in  order  to  facilitate 
their  task,  and,  so  to  speak,  to  place  at  their  disposal  an  ever  ready  means  of  con- 
ciliation. Chevalier  Descamps  then  submits  to  the  committee  a  new  draft  of 
Article  13  which  would  immediately  precede  the  provisions  relating  to  the  code  of 
arbitration. 

New  draft  of  Article  13  proposed  by  Chevalier  Descamps: 

With  a  view  to  facilitating  recourse  to  arbitration  and  the  operation  of 
the  system  of  arbitration,  the  high  contracting  Parties  have  agreed  to  deter- 
mine certain  points  concerning  the  organization  of  the  arbitral  jurisdiction  and 
the  procedure  to  be  followed  in  connection  therewith. 

The  rules  thus  established  do  not  apply  if  there  are  other  stipulations 
between  the  parties. 

Examination,  upon  Its  First  Reading,  of  the  Russian  Plan  for  the  "  Code 

of  Arbitration  "  ^ 

After  having  heard  the  preceding  declarations  and  postponed  to  a  future 
meeting  its  vote  upon  the  new  text  of  Article  13,  the  committee  passes  to  the 
discussion  of  the  articles  of  the  code  of  arbitration. 

Article  1 

The  President  reads  Article  1  which  should  come,  according  to  his  view, 
after  Article  13  of  the  Russian  draft. 

This  Article  1  is  adopted  subject  to  the  reservation  that  it  shall  be  examined 
in  the  future  and  with  the  following  modification :  the  word  "  States  "  is  substi- 
tuted for  the  word  "  nations  "  in  line  2,  and  the  word  "  parties  "  for  the  word 

"  Governments  "  in  line  3. 
[32]  Article  2 

The  President  reads  Article  2. 

Chevalier  Descamps  will  propose  at  the  next  meeting  a  text  which  he  thinks 
will  avoid  the  confusion  which  seems  to  exist  between  the  arbitral  clause  and  the 
compromis. 

Mr.  Asser,  supporting  the  views  of  Chevalier  Descamps  upon  this  point, 
asks  that  Article  3  be  omitted  and  inserted  later,  and  that  the  article  which  will 
be  proposed  by  Mr.  Descamps  be  placed  among  the  general  provisions  at  the  head 
of  the  final  act. 

Mr.  Asser  also  asks  that  these  words  "  all  of  the  facts  and  legal  points  "  be 
not  written  into  Article  2.  Doubtless  we  should  determine  the  exact  object  of 
the  controversy,  that  is  the  facts  and  the  law  points  submitted  to  the  decision  of 
the  arbitrator,  but  it  is  going  too  far  to  say  in  advance  that  all  the  facts  in  their 
entirety  should  be  set  out,  because  several  may  be  found  which  might  have  been 
omitted  at  the  beginning  and  which  would  come  to  light  later. 

Mr.  Lammasch  believes  with  Mr.  Martens  that  it  is  essential  to  determine 
as  clearly  as  possible  the  purpose  of  the  arbitration  under  the  penalty  of  coming 

^  See  annex  1,  B. 


NINTH  MEETING,  JUNE  23,  1899  733 

within  the  scope  of  Article  26  which  provides  for  cases  of  nullity.  However  we 
might  do  justice  to  Mr.  Asser's  remarks  by  adding  to  the  words  "  all  the  facts  " 
the  word  "  essential." 

Mr.  Holls  asks  that  the  words  "  without  appeal "  be  omitted  from  Article  2, 
and  that  this  provision  be  added :  "  every  litigant  shall  have  a  right  to  a  second 
hearing." 

Mr.  Asser  and  Mr.  Descamps  believe  that  we  may,  strictly  speaking,  omit 
the  words  "  without  appeal,"  since  they  appear  later  in  Article  24. 

Mr.  Martens  is  not  of  this  opinion.  The  words  "  without  appeal "  are  indis- 
pensable, and  should  be  written  into  Article  2,  the  parties  being  free,  of  course, 
to  adopt  any  contrary  provision. 

The  President  is  of  the  opinion  that  the  proposition  of  Mr.  Holls  will  find 
its  proper  place  in  Article  24 ;  if  it  is  adopted  we  might  then  return  to  Article  2. 
Mr.  Holls  accepts  this  suggestion. 

The  questions  of  repeal  and  revision  will  therefore  be  discussed  at  the  end  of 
the  code  of  arbitration. 

Mr.  Odier  calls  the  attention  of  the  committee  to  a  conflict,  at  least  apparent, 
between  Article  2  and  Article  16,  which  authorizes  the  making  of  motions  before 
the  arbitral  tribunal  in  the  course  of  the  proceedings.  What  is  meant  by  ''  mo- 
tions "  concerning  matters  already  under  discussion  ? 

If  we  admit  these  motions  here  would  we  not  return  to  the  necessity  of 
fixing  in  advance  all  of  the  facts  contemplated  by  Article  2? 

Mr.  Martens  replies  that  it  seems  proper  to  reserve  the  right  to  present  new 
facts  or  questions.  After  a  general  discussion  this  question  is  postponed  until 
the  consideration  of  Article  16. 

We  reserve  also  the  adoption  of  Article  2 ;  Chevalier  Descamps  will  bring  a 
new  draft  to  the  next  meeting. 

Article  3 
The  same  action  is  taken  as  regards  Article  3. 

Articles  4  and  5 

The  President  reads  Articles  4  and  5,  which  are  closely  related. 

Mr.  Asser  thinks  that  the  draft  of  Section  1  of  Article  4  is  incomplete.  He 
desires  that  mention  should  be  made  specially  of  the  case  where  the  sovereign  is 
not  himself  the  arbitrator,  but  agrees  to  designate  an  arbitrator. 

Mr.  Martens  thinks  that  it  would  be  advantageous  to  make  two  articles  out 
of  Article  4  in  view  of  the  institution  of  a  permanent  tribunal :  he  suggests  there- 
fore the  adoption  of  the  following  text  which  would  meet  the  objection  of  Mr. 
Asser  : 

The  interested  Governments  may  entrust  the  duties  of  arbitrator  to  a 
sovereign  or  a  chief  of  State  of  a  third  Power  when  the  latter  agrees  thereto. 
They  may  also  entrust  these  duties  either  to  a  single  person  chosen  by  them, 
or  to  an  arbitral  tribunal  formed  for  this  purpose,  or  to  the  permanent  tribunal 
of  arbitration,  established  by  virtue  of  Article  . .  . 

In  the  case  of  the  formation  of  a  special  tribunal  of  arbitration  the  latter 
should  be  formed  as  follows :  each  contracting  party  chooses  two  arbitrators 
and  all  the  arbitrators  together  choose  the  umpire  who  is  de  jure  president 
of  the  arbitral  tribunal. 

In  case  of  equal  voting  the  litigant  Governments  shall  address  a  third 


734  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

Power  or  a  third  person  by  common  agreement  and  the  latter  shall  name  the 

umpire. 

[33]   Chevalier  Descamps  is  of  the  opinion  that  the  code  of  arbitration  cannot 

enumerate  everything,  foresee  everything:  he  therefore  reserves  the  right 

to  propose  to  the  committee  a  more  general  version  which  will  leave  to  the 

interested  parties  all  necessary  freedom  of  action. 

After  a  general  discussion  the  committee  postpones  its  decisions  upon  the 
motion  of  Messrs.  Martens  and  Descamps  as  well  as  upon  Section  1  of  Article  4. 

The  committee  then  passes  to  the  discussion  of  Section  2  of  Article  4. 

Mr.  Lammasch  in  his  turn  reserves  the  right  to  suggest  a  new  text  at  the 
next  meeting. 

After  an  exchange  of  views  in  which  all  the  members  of  the  committee  take 
part,  it  is  decided  that  the  examination  of  Articles  4  and  5  shall  be  postponed  like 
that  of  the  preceding  Articles. 

Article  6 

The  President  reads  Article  6.  He  asks  if  the  text  of  this  article  shall  not 
also  provide  for  the  retirement  of  an  arbitrator ;  in  that  case  Article  6  might  be 
redrafted  as  follows : 

The  disability  or  reasonable  challenge,  even  if  of  but  one  of  the  above 
arbitrators,  as  well  as  the  refusal  to  accept  the  offices  of  arbitration  (or 
relinquishment)  after  acceptance,  or  again  the  death  of  an  arbitrator  already 
chosen,  invalidates  the  entire  compromis  except  in  the  case  where  these 
conditions  have  been  foreseen  and  provided  for  in  advance  by  common  agree- 
ment between  the  contracting  parties. 

A  member  of  the  committee  remarks  that  the  word  "  disability "  is  very 
vague. 

Mr.  Asset  thinks  that  before  modifying  the  text  it  is  proper  to  discuss  the 
principle  thereof.  Now  to  his  mind  this  principle  is  very  much  open  to  question. 
It  would  be  preferable  to  authorize  the  interested  State  itself  to  choose  a  suc- 
cessor in  case  of  need.  In  this  case  the  compromis  would  remain  in  force,  and 
that  is  the  essential  principle  to  be  established  —  i.  e.,  that  what  is  favorable  to 
arbitration  should  be  the  rule  and  that  which  is  unfavorable  the  exception. 

Mr.  Martens  does  not  underestimate  the  value  of  Mr.  Asser's  comment, 
and  he  is  ready  to  give  due  consideration  thereto.  In  any  case  so  far  as  the  form 
of  Article  6  is  concerned,  he  believes  that  we  should  retain  the  word  "  disability  " 
because  an  arbitrator  may,  without  dying  or  the  relinquishment  of  his  position, 
become  unworthy  of  the  office,  ill,  insane  or  unable  to  fulfill  his  duties.  But  as 
to  the  objection  to  the  principle  brought  out  by  Mr.  Asser,  that  in  fact  presents 
the  following  question  for  solution:  should  the  disability  of  an  arbitrator  carry 
with  it  the  nullification  of  the  compromis,  or  indeed  on  the  contrary  shall  the 
compromis,  so  to  speak,  survive  the  arbitrator?  There  are  examples  of  this. 
Thus  in  a  recent  case  of  arbitration  between  Italy  and  Persia  the  King  of  Sweden, 
who  had  been  asked  to  name  an  arbitrator,  at  first  selected  one  of  his  subjects, 
then  he  reversed  his  decision  and  named  in  his  place  another  arbitrator,  although 
this  right  was  not  reserved  to  him  in  the  compromis.  To  my  mind  he  did  not 
have  the  right  to  do  this,  and  if  he  was  able  to  do  it  without  inconvenience  it  was 
due  solely  to  the  circumstances.     Generally  speaking,  we  may  say  that  if  one  of 


NINTH  MEETING,  JUNE  23,  1899  735 

the  clauses  of  the  compromis  cannot  be  executed  by  reason  of  the  disability  of 
an  arbitrator,  then  it  is  better  that  the  compromis  should  be  rendered  invalid. 
On  the  contrary  when  all  of  the  clauses  may  be  executed,  Mr.  Martens  is  of  the 
opinion  that  the  amendment  of  Mr.  Asser  should  be  adopted. 

Mr.  Hells  thinks  that  the  principle  of  nullification  written  into  Article  6 
should  be  retained  because,  he  says,  we  should  not  be  satisfied  with  words :  arbitra- 
tion is  above  all  a  matter  of  personal  confidence  in  the  arbitrators:  it  is  by  virtue 
of  this  personal  confidence  that  the  arbitral  commission  is  formed,  and  constitutes 
a  real  entity.  If  one  person  is  lacking  as  arbitrator  the  compromis  has  no  longer 
any  basis ;  a  new  one  must  be  made. 

Mr.  Asser  admits  the  arguments  of  Mr.  Holls,  but  the  reasoning  of  the 
delegate  of  the  United  States  does  not  prevent  the  Government  which  has  mani- 
fested its  confidence  in  an  arbitrator  from  transferring  this  same  confidence  to 
another  arbitrator,  also  of  its  choice.  It  will  often  happen  that  the  arbitrators 
chosen  are  not  young  and  arbitrations  may  last  a  long  time.  Will  it  be  admitted 
that  the  death  of  an  arbitrator  on  the  eve  of  the  delivery  of  the  award  will  open 
up  everything  to  discussion  again  ? 

Dr.  Zorn  is  of  the  opinion  that  the  committee  might  without  inconven- 
ience unite  in  Mr.  Asser's  view.  Indeed,  what  is  the  principal  danger  which  a 
civilized  Government  —  especially  the  German  Government  —  may  see  in  the 
institution  of  an  arbitration  ?  It  is  the  absence  of  guaranties  as  to  the  impartiality 
of  the  arbitrators.  It  goes  without  saying  as  a  general  rule,  that  all  the  interested 
States  will  name  as  arbitrators  men  chosen  from  among  the  best,  and  designated 
because  of  the  general  and  undisputed  respect  for  them.  But  it  is  no  less  true 
that  this  guaranty  of  impartiality  is  of  an  absolutely  moral  character,  and  that  it 
is  unique :  there  is  no  other.  Let  us  not  neglect  therefore  any  precaution  for  safe- 
guarding it  and  strengthening  it.  Bearing  this  in  mind,  it  is  none  the  less 
[34]  true,  on  the  other  hand,  that  when  two  Governments  have  reached  an  agree- 
ment to  form  an  arbitration  there  is  good  reason  for  preventing  a  chance 
occurrence  from  nullifying  the  results  of  their  labors.  In  this  respect  the  propo- 
sition of  Mr.  Asser  is  satisfactory  since  it  provides  for  this  occurrence  while  safe- 
guarding the  necessary  guaranties  of  confidence. 

Mr.  Holls  replies  that  he  has  no  other  object  in  view  than  to  assure  to  the 
parties  in  interest  absolutely  the  maximum  of  guaranties  possible,  and  it  is  for  the 
purpose  of  reserving  their  rights,  their  interests  and  their  liberty  that  he  asks  for 
the  preservation  of  Article  6. 

His  Excellency  Sir  Julian  Pauncefote  and  His  Excellency  Count  Nigra 
support  the  views  presented  by  Mr.  Asser,  and  point  out  to  the  committee  the 
precedent  furnished  by  Article  4  of  the  treaty  between  Italy  and  Argentina. 
After  a  general  discussion,  and  subject  to  the  reservation  of  further  examina- 
tion, the  following  French  translation  is  decided  upon,  which  will  take  the  place 
of  the  text  of  Article  6  until  further  action : 

When  an  arbitrator  for  any  reason  cannot  assume  or  continue  the  duties 
with  which  he  has  been  charged,  his  place  shall  be  filled  by  following  the 
same  procedure  which  governed  his  appointment. 

The  next  meeting  is  set  for  Monday,  June  26,  at  a  quarter  of  three,  Hall  of 
the  Truce. 

The  order  of  business  calls  for  the  continuation  of  the  discussion  of  the  plan 
for  the  code  of  arbitration. 

The  meeting  is  adjourned. 


TENTH   MEETING 

JUNE  26,   18991 


Mr.  Leon  Bourgeois  presiding. 

The  order  of  business  calls  for  the  continuation  of  the  discussion  of  the  code 
of  arbitration : 


Examination,  upon  Its  First  Reading,  of  the  Russian  Plan  for  the  "  Code 
of  Arbitration  "  (Continued)  ^ 

Article  7 

The  President  reads  Article  7. 

His  Excellency  Sir  Julian  Pauncefote  recalls  that  in  his  plan  for  a  perma- 
nent tribunal  of  arbitration  Section  2,  Article  4,  adopted  by  the  committee,  already 
contemplated  the  provisions  regarding  the  meeting  place  of  the  tribunal.  Care 
should  be  taken  not  to  lose  sight  of  this  article  and  to  make  its  text  agree  with 
that  of  Article  7  now  under  consideration. 

The  committee  thanks  Sir  Julian  Pauncefote  for  these  observations  and 
decides  to  insert  in  the  first  sentence  of  Article  7  of  the  code  of  arbitration  (sub- 
ject to  a  future  determination  of  the  necessary  agreement  between  the  two  arti- 
cles) the  following  words:  "except  in  the  case  provided  for  in  Article  4  relative 
to  the  permanent  tribunal "  after  the  words  "  the  meeting  place  of  the  arbitral 
.tribunal." 

Adopted. 

Chevalier  Descamps,  taking  up  in  his  turn  the  observation  of  Sir  Julian 

Pauncefote  regarding  the  second  sentence  of  Article  7,  proposes  to  modify  it  so 

as  to  make  it  agree  with  the  text  already  adopted  in  Article  4,  above  cited, 

[35]   of  the  plan  for  the  permanent  tribunal.     He  suggests  the  following  version: 

"  the  tribunal  shall  have  the  right  to  meet  elsewhere  or  change  its  meeting 

place  in  case  of  necessity." 

After  a  general  discussion  the  committee  adopts  the  following  text  for  the 
second  sentence  of  Article  7:  "A  change  of  the  meeting  place  of  the  tribunal 
can  be  decided  upon  either  by  a  new  agreement  between  the  interested  Govern- 
ments or  in  case  of  necessity  by  the  tribunal  itself." 

iHall  of  the  Truce.  Present:  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; Jonkheer  van  Karnebeek,  vice  president  of  the  Conference;  their  Excellencies  Count 
Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the  Third  Commission;  Chevalier 
Descamps,  president  and  reporter;  Messrs.  Asser,  Baron  d'Estournelles  de  Constant, 
HoLLS,  Lammasch,  Martens,  Odier,  Dr.  Zorn,  members  of  the  committee  of  examination. 
Present  at  the  meeting:     Mr  Easily. 

2  See  annex  1,  B. 

736 


TENTH  MEETING,  JUNE  26,  1899  737 

Article  8 

The  President  reads  Article  8. 
Adopted. 

Article  9 

Adopted  with  this  modification : 

The  word  "  deliberations,"  being  likely  to  give  rise  to  misunderstanding,  is 
omitted,  (see  under  Articles  11  and  17  the  reason  for  this  omission). 

Article  10 

Chevalier  Descamps  points  out  a  modification  to  be  made  either  in  Article 
10  or  Article  24:  in  fact  if  we  compare  Article  10  with  Article  24  it  is  evident 
that  the  latter  provides  for  complete  arbitral  procedure  including  the  award, 
while  Article  10  excludes  the  latter  from  the  definition  given  to  the  word  pro- 
cedure. 

The  President  recognizes  the  accuracy  of  this  observation:  Article  10  in 
fact  contemplates  only  instance  while  Article  24  covers  all  the  procedure.  But 
it  is  the  text  of  the  latter  article  which  would  seem  to  be  defective ;  it  would  be- 
come clear  if  we  substitute  the  word  "  procedure  "  in  the  third  line  of  Article  24 
for  the  words  "  all  the  procedure." 

Chevalier  Descamps  points  out  that  to  his  mind  the  terms  "  preliminary  pro- 
cedure "  and  "  final  procedure  "  are  illegal  and  incorrect.  We  shall  have  to  come 
back  to  this  upon  the  final  revision. 

The  committee  being  also  of  this  opinion,  it  will  be  considered  in  connection 
.with  Article  24. 

As  for  Article  10,  paragraph  1  is  adopted ;  paragraph  2  is  modified  subject 
to  further  examination :  "  The  former  consists  in  the  communication  to  the 
members  of  the  tribunal  and  to  the  adverse  party  by  the  agents  of  the  contracting 
parties  of  all  acts,  printed  or  written,  containing  the  proofs  of  the  parties  upon  the 
questions  in  dispute." 

The  third  paragraph  is  adopted  without  modification. 

All  of  Article  10  is  adopted. 

Article  10  bis 

The  committee  decides  to  introduce  after  Article  10  an  article  complementary 
thereto,  drawn  up  as  follows  (Article  10  bis) :  "Every  document  produced  by 
one  party  must  be  communicated  to  the  other." 

Article  U 

The  word  "  deliberations  "  is  replaced  by  the  word  "  discussions  "  in  para- 
graph 2,  and  paragraph  1  is  adopted  in  the  following  form :  "  The  discussions 
before  the  arbitral  tribunal  are  under  the  direction  of  ihe  president." 

Paragraph  2  is  adopted  with  the  following  modification :  "  Minutes  of  all 
of  these  discussions  are  drawn  up  by  secretaries  appointed  by  the  president  of  the 
tribunal;  the  minutes  only  have  an  authentic  value." 

Article  12 

After  a  discussion  participated  in  by  his  Excellency  Count  Nigra,  Messrs, 
Martens,   Holls,   Asser,   Chevalier   Descamps,   and   Bourgeois,   Article    12   is 


738  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

adopted  in  the  following  form:     "Preliminary  procedure  haznng  been  concluded 
and  the  discussions  having  been  opened,  the  arbitration  tribunal  has  the  right  to 
■refuse  all  new  acts  and  documents  which  one  of  the  parties  may  wish  to  submit 
to  it  without  the  consent  of  the  other." 
Adopted. 

Article  13 

Article  13  is  adopted  with  the  following  modifications:  substitute  the  word 
[36]   •'  production  "  for  the  word  "  presentation  "  in  paragraph  2  (4th  Hne)  and 

add  to  the  last  line  of  the  same  paragraph  these  words  "  and  it  is  bound," 
before  the  words  ''  make  them  known." 

Article  14 

A  general  discussion  arises  concerning  the  text  of  this  article  and  is  partici- 
pated in  especially  by  Messrs.  Chevalier  Descamps,  Holls,  Lammasch,  Bour- 
geois, and  Martens.  The  latter,  in  agreement  with  Mr.  Lammasch,  believes  that 
this  article  is  of  practical  importance  and  that  is  why  it  has  been  adopted  almost 
verbatim  by  the  English  and  Venezuelan  arbitrators.^  The  tribunal  may  invoke 
the  provisions  of  this  article,  as  a  valuable  right  not  only  for  seeking  information, 
but  also  for  purposes  of  control  to  compel  the  agents  of  the  parties  in  a  proper 
case  to  prove  their  statements. 

The  President  summarizes  the  discussion  by  saying  that  the  principle  which 
all  of  the  members  of  the  committee  seem  to  desire  to  bring  out  in  this  article  is 
this :  if  the  agents  refuse  for  one  reason  or  another  to  produce  the  proofs  which 
are  demanded  from  them  by  the  other  agents,  then  the  tribunal,  being  unable  to 
coerce  them,  may,  and  should  take  note  of  their  refusal.  In  other  words  a  State 
cannot  be  obliged  to  agree  to  this  proof,  but  if  it  refuses  to  make  it,  it  does  so  at 
its  own  risk  and  peril.  The  text  of  Article  14  therefore  completely  reserves  both 
the  right  of  the  tribunal  and  the  freedom  of  the  parties. 

After  this  exchange  of  views,  the  committee  decides  to  substitute  "  can  "  for 
"  right,"  and  the  draft  of  Article  14  is  adopted  upon  the  first  reading. 

Article  15 

Adopted. 

Article  16 

After  a  general  discussion  and  upon  motion  of  Chevalier  Descamps,  the  com- 
mittee adopts  the  first  paragraph  of  this  article  with  the  following  modifications, 
subject  to  the  reservation  of  a  future  examination :  "  these  agents  and  counsel  have 
also  the  right  to  raise  before  the  tribunal  objections  and  points  concerning  the 
matter  to  be  discussed." 

As  for  paragraph  2  its  provisional  form  will  be  as  follows :  "  The  de- 
cisions of  the  tribunal  on  these  questions  are  final  and  cannot  form  the  subject 
of  discussion." 

Regarding  the  provisional  character  of  the  draft  of  Article  16,  the  committee 
understands  once  for  all  that  the  same  remark  applies  to  all  drafts  which  have 
been  adopted  up  to  the  present  time,  and  which  will  be  adopted  by  it  upon  the 
first  reading ;  many  articles  must  necessarily  be  revised  in  the  final  act  in  order 
to  be  made  to  agree  with  one  another. 

1  See  Article  10  of  the  "  Rules  of  Procedure." 


TENTH  MEETING,  JUNE  26,  1899  739 

Article  17 

Adopted  with  this  modification  in  the  second  Hne  of  paragraph  2:  the  word 
"  deliberations "  being  erroneously  appHcable  both  to  discussions  and  delibera- 
tions, will  be  replaced  by  the  word  "  discussions "  and  this  substitution  will  be 
carried  out  all  through  the  articles  where  it  may  be  necessary,  as  has  been  done 
in  Articles  9  and  11. 

Article  18 

After  a  general  discussion,  the  committee  adopts  the  following  version,  re- 
versing the  order  of  the  sentences:  "The  arbitral  tribunal  alone  is  authorized 
to  determine  its  competency  in  interpreting  the  clauses  of  the  compromis,  ac- 
cording to  the  provisions  of  special  treaties  which  may  be  invoked  in  the  case,  as 
well  as  the  principles  of  international  lazv." 

In  the  course  of  the  general  discussion  which  preceded  the  vote  upon  this 
Article  18,  an  interesting  exchange  of  views  took  place  as  a  result  of  a  remark 
by  Mr.  Asser. 

Mr.  Asser  regrets  that  we  cannot  further  extend  the  powers  of  the  ar- 
bitrators in  Article  18.  In  support  of  his  opinion  he  invokes  the  precedent  of  the 
arbitration  between  Holland  and  France  regarding  Guiana;  each  of  the  two  in- 
terested parties  having  fixed  the  line  claimed  by  them,  must  the  arbitrator  neces- 
sarily declare  himself  in  favor  of  one  or  the  other  of  the  lines?  Or  indeed 
could  he  not  fix  a  third  if  he  deem  it  more  equitable?  Such  is  the  condition 
which  His  Majesty  the  Emperor  of  Russia  imposed  before  accepting  the  arbitra- 
tion which  was  offered  to  him.  The  Emperor  insisted  upon  being  free  to  deter- 
mine his  competency  himself,  and  upon  being  able  not  only  to  adopt  the  French 

or  Netherland  solution,  but  his  own  solution  —  an  intermediate  solution. 
[37]  This  condition  was  accepted  by  the  parties  in  an  express  declaration  on 
August  28,  1890,  which  Mr.  Asser  communicates  to  the  committee.^ 

Mr.  Martens  makes  the  following  explanation  upon  this  point:  His  Ma- 
jesty Emperor  Alexander  III  not  desiring  in  fact  to  be  invested  with  limited 
powers,  the  two  parties  agreed  to  give  him  the  freedom  which  he  claimed.  How- 
ever, they  were  free  to  refuse  this  freedom  and  the  Emperor  likewise  had  the 
right  to  demand  it. 

Mr.  Asser  wonders  whether  the  convention  could  not  contain  a  provision 
along  the  line  which  he  has  just  pointed  out,  reserving  to  arbitrators  the  greatest 
freedom  of  action. 

The  President  thanks  Mr.  Asser  for  his  interesting  communication.  He 
recognizes  that  in  practice  this  freedom  may  even  be  of  advantage,  but  it  may 
also  be  otherwise.  That  depends  upon  circumstances.  Furthermore,  it  seems 
difficult  to  introduce  such  a  provision  into  an  act  as  general  in  character  as  that 
which  we  are  preparing.  It  might  rather  find  its  place  in  the  special  compromis 
between  the  parties;  the  latter  should,  above  all,  always  remain  free  to  entrust 
themselves  to  the  decision  of  the  arbitrators,  to  the  extent  which  they  themselves 
determine.  If  we  take  away  this  freedom  we  must  take  care  not  to  run  counter 
to  the  purpose  which  we  are  bound  to  seek,  and  instead  of  leading  Governments 
little  by  little  to  the  practice  of  arbitration,  turn  them  away  from  it;  because 

1  Convention  of  November  29,  1888,  between  France  and  the  Netherlands  concerning 
their  dispute  regarding  the  boundaries  of  their  respective  colonies  (French  Guiana  and 
Surinam). 


740  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

they  will  not  come  to  it  unless  they  know  exactly  where  they  are  going,  and 
unless  they  feel  they  are  protected  from  all  surprise. 

Mr.  Asset  replies  that  it  is  precisely  this  consideration  which  made  him 
determine  not  to  put  his  remarks  in  the  form  of  a  motion.  He  only  asks  that 
a  minute  of  this  discussion  be  made  of  record. . 

It  was  so  decided. 

Article  19 

The  President  reads  Article  19.  This  article  is  adopted  with  the  omission 
from  the  last  sentence  of  the  words  "  and  to  pass  upon  ...  to  two  parties." 

Article  20 

Article  20  is  adopted  with  this  slight  modification:  "pronounce"  should  be 
written  instead  of  "  shall  pronounce." 

Article  21 

Paragraph  1  is  adopted  without  modification. 

In  paragraph  2  "  members   of  the  tribunal "  will  be   written   instead   of 
"  members  of  the  tribunal  present."  ^ 
Paragraph  3  is  adopted. 

Article  22 
(Should  the  award  state  the  reasons  upon  which  it  is  based?) 

Dr.  Zorn  requests  the  addition  at  the  end  of  paragraph  1  of  these  words: 
"  must  state  the  reasons  on  which  it  is  based." 

Mr.  Martens  recognizes  the  significance  of  this  proposition.  He  has  on 
more  than  one  occasion  mentioned  the  advantages  that  would  result  from  a 
statement  of  the  reasons  upon  which  the  awards  of  arbitrators  are  based;  espe- 
cially by  this  means  we  would  succeed  in  creating  a  valuable  body  of  law.  But 
on  the  other  hand  he  is  bound  to  recognize  serious  objections  which  he  has  met 
on  the  part  of  different  arbitrators  who  are  of  the  highest  authority  in  these 
matters,  and  who  have  called  his  attention  to  the  fact  that  in  an  international 
conflict  arbitrators  are  not  only  judges;  they  are  also  representatives  of  their 
Governments.  To  require  them  to  state  the  reasons  for  their  decisions  would 
be  to  impose  upon  them  one  of  the  most  delicate  of  obligations,  and  perhaps 
even  to  embarrass  them  seriously,  if  their  judicial  consciences  do  not  find  them- 
selves in  accord  with  the  requirements  of  their  Governments  or  the  sensibilities 
of  public  opinion  in  their  countries.  It  is  indeed  going  far  to  require  an  im- 
partial arbitrator  to  condemn  his  own  government.  Must  we  also  require  him 
to  justify  himself  expressly  and  thereby  aggravate  this  condemnation?  If  the 
arbitral  decision  contains  only  a  few  sentences  all  of  the  arbitrators  without 
regard  to  their  nationality  may  sign  it.  Will  the  result  be  the  same  if  this 
award,  accompanied  by  a  statement  of  the  reasons  on  which  it  is  founded,  im- 
plies a  severe  criticism  of  or  casts  blame  upon,  one  of  the  parties?  It  is  clear 
that  the  arbitrator  of  the  country  blamed  will  be  obliged  to  abstain  from  voting, 
and  consequently  that  the  decision  will  have  less  authority.  That  is  why,  in 
the  very  interest  of  the  growth  of  the  principle  of  arbitration,  the  Russian  Govern- 

1  [The  words  "  of  the  tribunal "  are  evidently  a  misquotation  in  the  French  text.] 


TENTH  MEETING,  JUNE  26,  1899  741 

ment  has  not  gone  so  far  as  to  provide  that  arbitral  decisions  shall  be  accom- 
panied by  a  statement  of  the  reasons  upon  which  they  are  based. 
[38]    In  the  face  of  these  remarks  Dr.  Zorn  reserves  the  right  to  renew  this 
motion,  if  there  is  a  reason  therefor,  upon  the  second  reading. 

Chevalier  Descamps  recognizes  the  political  bearing  of  the  remarks  of  Mr. 
Martens,  but  these  considerations  may  be  reconciled  with  the  motion  of  Dr. 
Zorn.  In  fact  arbitrators  have  the  power  to  state  the  reasons  for  their  awards 
in  a  few  words.  They  themselves  will  know  very  well  how  to  ascertain  the 
form  and  limits  to  be  observed  in  this  connection.  It  would  be  very  injurious  from 
the  judicial  point  of  view  to  abandon  a  statement  of  the  reasons  for  the  award. 
The  obligation  to  state  the  reasons  is  at  the  same  time  an  essential  guaranty  to 
those  before  the  court,  and  one  of  the  most  valuable  elements  of  progress  in  law. 

After  this  discussion  the  text  of  paragraph  1  of  Article  22  is  adopted  sub- 
ject to  the  reservation  of  the  amendment  by  Dr.  Zorn,  which  will  be  taken  up 
again  upon  the  second  reading.  In  paragraph  2  the  words  "  in  the  minority 
record  "  are  replaced  by  the  words  "  in  the  minority  may  record." 

Article  23 

The  word  "  solemnly  "  is  stricken  out  and  the  article  adopted  in  the  f  oUow- 
form:  "The  arbitral  award  is  read  out  at  a  public  sitting  of  the  tribunal  in 
the  presence  of  the  agents  and  counsel  of  the  Governments  at  variance,  or  upon 
their  being  duly  summoned  to  attend." 

Dr.  Zorn  might  have  some  objections  to  draw  up  regarding  the  public 
character  of  the  meeting;  he  reserves  the  right  to  present  them  on  the  second 
reading. 

This  reservation  by  Dr.  Zorn  is  entered  on  the  minutes. 

Article  24 
{Question  of  revision) 

The  President  reads  Article  24. 

Mr.  Hells  wonders  whether  the  time  is  not  come  to  discuss  before  entering 
into  the  examination  of  this  article,  the  principle  of  the  amendment  which  he 
has  prepared  regarding  revision  and  appeal.^ 

Mr.  HoLLS  asks  that  this  provision  be  expressly  made  for  a  rehearing,  if 
the  parties  desire  it,  before  the  same  judges,  within  a  period  of  three  months. 
His  Government  places  considerable  emphasis  upon  this  point:  in  the  case  of 
a  special  arbitration,  provision  for  such  a  hearing  might  without  doubt  be  stipu- 
lated in  the  compromis ;  but  in  case  of  the  organization  of  the  permanent  court 
it  would  have  to  be  provided  for  in  the  general  act. 

Mr.  HoLLS  reserves  the  right  to  present  this  opinion  at  greater  length  in 
writing  sometime  in  the  future. 

Mr.  Asser  supports  this  motion.  It  would  be  better,  he  says,  to  accept 
the  principle  of  a  rehearing  if  one  of  the  parties  is  not  satisfied,  than  to  run 
the  risk  of  having  that  party  refuse  to  accept  arbitration. 

Mr.  Martens  replies  that  it  is  necessary  to  his  mind  to  ascertain  whether 
we  are  dealing  with  particular  or  special  tribunals  of  arbitration  or  with  the 
permanent  tribunal  itself.     If  we  are  discussing  the  latter  we  shall  take  it  up 

1  See  the  proposition  of  the  American  commission,  annex  No.  7. 


742  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

when  the  time  comes;  if  on  the  contrary  we  are  considering  the  former  we  must 
reserve  to  Governments  absolute  freedom  and  not  usurp  their  individual  initiative 
in  the  text  of  the  general  act.  If  we  ourselves  in  advance  open  the  way  to 
revision  we  shall  tear  down  with  one  hand  what  we  construct  with  the  other: 
we  shall  take  away  from  arbitration  part  of  its  strength  and  we  shall  perpetuate 
disputes  which  we  would  terminate.  Consequently,  Mr.  Martens  concludes, 
not  only  do  I  not  see  any  use  in  providing  for  a  revision,  but  I  see  danger  in  so 
providing.  It  is  indeed  sufficient  to  leave  absolute  freedom  to  the  parties  in 
this  connection.     Our  own  duty  is  to  offer  arbitration  as  a  final  solution. 

Chevalier  Descamps  cites  the  text  adopted  by  the  Institute  of  International 
Law  following  the  Hues  of  Mr.  Holls'  motion  (Article  13).  The  question  is 
whether  it  is  necessary  to  introduce  the  principle  of  revision  into  our  draft  or 
simply  to  reserve  this  right  to  be  acted  upon  at  the  initiative  of  the  parties. 

Mr.  Holls  insists  upon  his  observations  and  asks  that  the  discussion  be 
postponed  to  a  future  meeting. 

Vote  upon  Article  24  is  therefore  reserved. 

Article  24  bis. 

Mr.  Asser  reads  the  amendment  which  he  proposes  to  insert  after  Article 
24  under  No.  24  bis. 

The  arbitral  award  is  binding  only  on  the  parties.     If  there  is  a  question 
of  interpreting  a  Convention  concluded  by  a  larger  number  of  States  than 
those  between  which  the  dispute  has  arisen,  the  latter  shall  notify  to  the 
other  signatory  States  the  compromis  which  they  have  signed,  and  each 
[39]  of  the  signatory  States  shall  have  the  right  to  intervene  in  the  arbitral  suit. 
If  one  or  more  of  these  States  avail  themselves  of  this  right,  the  interpreta- 
tion of  the  Convention  contained  in  the  award  will  be  equally  binding  for  them. 

Save  for  modification  of  form  the  committee  adopts  the  principle  of  this 
amendment.     This  article  will  come  after  Article  24  until  further  action. 

Mr.  Holls  proposes  in  his  turn  an  amendment  which  would  be  expressed 
as  follows :  "  after  the  rendering  of  the  arbitral  award  any  one  may  have  a 
copy  at  his  expense  of  the  documents  relating  to  the  arbitration."  ^ 

Chevalier  Descamps  believes  it  is  difficult  to  sanction  such  a  right;  espe- 
cially to  this  extent.  There  are  a  great  many  arbitral  decisions  which  have  not 
been  published,  and  which  the  parties  have  an  interest  in  not  publishing.  There 
may  be  "  reasons  "  stated  therein  which  a  State  would  not  wish  to,  or  could  not, 
make  known.  If  the  two  parties  agree  to  publish  nothing  would  Mr.  Holls' 
proposition  require  them  to  do  so? 

Mr.  Holls  reserves  this  proposal  for  the  second  reading. 

Article  25 

Mr.  Holls  observes  that  there  is  no  article  governing  the  appointment  of 
judges. 

The  President  replies  that  if  the  parties  form  a  special  arbitration  between 
themselves  they  themselves  will  determine  this  point  in  their  special  conventions. 
If,  on  the  contrary,  they  have  resorted  to  the  permanent  tribunal  the  question 
will  be  examined  by  the  committee  when  it  comes  back  to  the  organization  of 
this  tribunal. 

1  See  text  of  the  American  proposition,  annex  7,  paragraph  3. 


TENTH  MEETING,  JUNE  26,  1899  743 

Article  25  is  adopted  with  the  following  modification:  the  word  "one-half" 
will  be  replaced  by  '"  an  equal  share,"  subject  to  future  revision  in  the  matter  of 
form. 

Article  26 
Question  of  nullity 

Mr.  Asser  asks  whether  some  power  might  not  be  found  on  which  would 
devolve  the  duty  of  declaring  the  award  null,  so  that  so  serious  a  judgment 
might  not  be  left  to  arbitrary  action  or  to  the  initiative  of  the  losing  State.  If, 
as  he  believes,  we  do  not  succeed  in  finding  this  power,  then  Mr.  Asser  is  of  the 
opinion  that  Article  26  should  be  stricken  out. 

The  President  believes  that  Mr.  Asser's  observations  should  call  for  the 
closest  consideration  on  the  part  of  the  committee. 

Chevalier  Descamps  thinks  that  a  great  service  which  a  permanent  court 
of  arbitration  could  render  would  be  to  act  precisely  as  such  a  power. 

Mr.  Odier  thinks  that  the  draft  of  this  article  is  subordinated  to  the  ques- 
tion as  to  whether  there  will  be  a  permanent  court  or  not. 

The  President  does  not  think  it  possible  to  provide  for  cases  of  nullity, 
without  knowing  at  the  same  time  who  will  be  the  judge  to  pass  upon  these  cases. 
We  cannot,  on  the  other  hand,  think  of  imposing  the  decision  of  the  permanent 
tribunal  upon  the  parties  in  questions  which  they  do  not  intend  to  submit  to  this 
jurisdiction. 

Chevalier  Descamps  asks  that  this  question  of  nullity  which  is  so  serious, 
be  reserved  together  with  that  of  revision. 

Paragraph  1  of  Article  26  is  reserved. 

The  other  two  sections  of  Article  26  will  form  Article  27. 

Article  27 

The  two  sections  which  compose  this  article  are  reserved. 

His  Excellency  Sir  Julian  Pauncef  ote  recalls  that  we  have  also  reserved  the 
question  of  the  number  of  arbitrators  in  cases  where  the  dispute  concerns  more 
than  two  States. 

Mr.  Lammasch  would  be  of  the  opinion  that  in  this  case  the  number  of 
arbitrators  for  each  party  should  be  limited  to  four. 

The  President  declares  that  the  minutes  will  state  this  point  upon  which  the 
members  of  the  committee  agree :  one  of  the  parties  should  not  in  any  case 
have  more  arbitrators  than  the  other. 

Chevalier  Descamps  asks  permission  before  the  end  of  the  session  to  call 
attention  to  a  special  point:  could  we  not  authorize  the  privilege  of  immunity 
for  the  arbitrators  since  they  are  members  of  an  international  supreme  court? 

Dr.   Zorn   shares   this   view   and   reserves   the   right   to   enlarge   upon   it 
[40]   himself.     He  thinks  that  the  arbitrators  are  "  diplomatic  agents  ad  hoc  " 
and  are  persons  with  extraterritorial  rights. 

The  committee  thinks  that  it  will  be  able  to  discuss  this  question  properly 
when  the  time  arrives. 

The  first  reading  of  the  articles  of  the  code  of  arbitration  being  ended,  the 
committee  decides  to  have  a  new  text  of  the  draft  code  of  arbitration  printed 
and  distributed  for  the  second  reading,  in  two  columns  with  the  original  articles 
opposite  the  articles  modified  by  the  committee.^ 

^  See  annex  9. 


744  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

The  next  meeting  will  take  place  on  Friday,  June  30,  at  3  o'clock. 
The  order  of  business  is  as  follows : 

1.  Second  reading  of  the  draft  code  of  arbitration; 

2.  Second  reading  of  the  draft  of  Sir  Julian  Pauncefote  for  the  permanent 
tribunal  (this  draft  will  also  be  reprinted  in  parallel  columns).* 

3.  Discussion  of  Article  10. 
The  meeting  is  adjourned. 

1  See  annex  9. 


ELEVENTH   MEETING 

JUNE  30,  1899  1 


Mr.  Leon  Bourgeois  presiding. 

The  minutes  of  the  last  meeting  are  read  and  adopted. 

Chevaher  Descamps  delivers  to  each  of  his  colleagues  the  text  which  he 
Icindly  assumed  the  burden  of  arranging  and  which  contains  opposite  the  original 
proposals  the  different  drafts  redrafted  by  the  committee  upon  first  reading 
concerning  the  draft  of  the  code  of  arbitration.  This  document  is  divided  into 
three  chapters :  ^ 

1.  The  system  of  arbitration  and  disputes  dependent  thereon; 

2.  The  permanent  tribunal  of  arbitration ; 

3.  Arbitration  procedure.  (It  is  this  last  chapter  which  is  going  to  be  dis- 
cussed upon  second  reading  during  the  present  session.) 

The  President  thanks  Chevalier  Descamps  for  the  communication  of  this 
interesting  piece  of  work. 

The  order  of  business  calls  for  the  discussion  upon  its  second  reading 
of  the  third  chapter  of  this  document,  that  is,  of  the  code  of  arbitration  pro- 
cedure. 


Examination,  upon  Its  Second  Reading,  of  "the  Draft  Code  of  Arbitra- 
tion Procedure  "  ^ 

Article  1 

After  a  general  discussion  this  article  is  stricken  out  as  being  a  duplication 
of  Article  13,  Chapter  I  —  furthermore  Article  13  has  been  approved  and 
adopted. 

Article  2 

After  an  exchange  of  views  it  is  decided  to  transfer  Article  2  to  Chapter  I 
(right-hand  column,  Descamps  draft). 
[41]  The  position  which  it  will  occupy  in  this  chapter  will  be  discussed  and 
settled  later. 

iHall  of  the  Truce.  Present:  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; Jonkheer  van  Karnebeek,  vice  president  of  the  Conference;  their  Excellencies  Count 
Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the  Third  Commission;  Chevalier 
Descamps,  president  and  reporter;  Messrs.  Asser,  Baron  d'Estournelles  de  Constant, 
HoLLs,  Lammasch,  Martens,  Odier,  Dr.  Zorn,  members  of  the  committee  of  examination. 

*  See  annex  9. 

745 


746  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

As  to  Article  2  (left-hand  column,  Martens  draft)  it  is  adopted  in  the 
following  form: 

The  Powers  which  accept  arbitration  sign  a  special  act  (compromis) 
in  which  the  subject  of  the  dispute  and  the  extent  of  the  powers  of  the 
arbitrators  are  clearly  defined,  and  in  which  the  engagement  of  the  two 
parties  to  submit  in  good  faith  to  the  arbitral  award  is  confirmed. 

Article  3 

The  two  articles  3  (left-hand  column  and  right-hand  column)  are  stricken 
out,  their  provisions  having  been  incorporated  in  the  preceding  article. 

Article  4 

After  a  long  discussion  regarding  (1)  the  personality  of  the  arbitrator,  (2) 
the  number  of  arbitrators,  the  committee  decides  by  a  majority  vote  that  there  is 
reason  for  fixing  the  number  of  arbitrators  chosen  by  each  party  at  2. 

The  text  of  Article  4  (right-hand  column)  is  adopted  with  the  following 
three  modifications : 

1.  Paragraph  3,  line  1,  substitute  the  words  "  two  arbitrators"  for  the  words 
"  one  arbitrator." 

2.  Paragraph  4,  line  3,  omit  the  words  "  or  person." 

3.  Paragraph  5,  omit  the  words  "  or  person." 

Article  5 

The  text  in  the  right-hand  column  is  adopted.  Paragraph  3  of  Article  26 
(left-hand  column)  being  a  duplication  of  this  article,  it  is  stricken  out. 

Article  5  bis 

This  article  is  adopted  in  the  following  form :  ""  The  umpire  is  president 
de  jure  of  the  tribunal.  When  the  tribunal  does  not  include  an  umpire  it  ap- 
points its  own  president." 

Article  6 

Mr.  HoUs  requests  the  retention  of  the  original  draft  (left-hand  column), 
he  insists  upon  the  remarks  which  he  made  previously,  and  summarizes  them 
by  saying  that  if  the  appointee  no  longer  exists,  the  commission  could  no  longer 
exist,  personal  confidence  being  the  basis  for  the  choice  of  arbitrators. 

Mr.  HoLLS  reserves  the  right  in  any  case  to  present  his  views  to  the  Com- 
mission in  plenary  session. 

In  supporting  these  views,  Mr.  Martens  believes  also  that  the  matter  of 
appointment  of  an  arbitrator  is  a  question  of  personal  confidence.  If  the  sub- 
ject of  this  confidence  disappears  it  is  a  natural  circumstance  which  changes  the 
state  of  facts  existing  when  the  compromis  was  signed,  and  consequently  nullifies 
it. 

The  President  calls  attention  to  the  fact  that  the  argument  of  Mr.  Holls 
is  significant  when  we  are  concerned  with  an  umpire,  but  not  when  we  are  dealing 
with  arbitrators. 

The  President  consults  the  committee  upon  the  question  as  to  whether  it 
shall  adopt  the  new  or  the  old  draft. 

The  new  draft  is  adopted  by  a  majority  of  4  to  3  with  two  abstaining  from 
voting. 


ELEVENTH  MEETING,  JUNE  30,  1899 


747 


In  favor  of  the  old  draft:    Messrs,  Holls,  Martens,  Lammasch. 

Abstaining:    Messrs.  Pauncefote,  Nigra. 

In  favor  of  the  new  draft :  Messrs.  Descamps,  Zorn,  Asser,  Odier. 


Adopted 


Adopted 
States." 


[42] 


Adopted 

I 
Adopted 

Adopted 

Adopted 

Adopted 


Adopted 
GEOis  to  meet 
case  of  refusa. 


Adopted 
in  "  instead  o 


Adopted 
Adopted 
Adopted 


Article  7 
right-hand  column). 

Article  8 
right-hand  column)  with  this  modification:    "Parties"  instead  of 


ibid.) 
ibid. ) 
ibid.) 
ibid.) 
ibid.) 


Article  9 

Article  10 
Article  11 
Article  12 
Article  13 
Article  14 


ibid.)  with  the  addition  of  this  sentence  suggested  by  Mr.  Bour- 
the  views  expressed  upon  this  point  at  the  tenth  session:  "In 
the  tribunal  takes  note  of  it." 

Article  15 

ibid.)  with  this  modification,  Hne  3,  "  they  may  consider  expedient 
"  concerning." 

Article  16 
ibid.) 

ibid.) 

ibid.) 


Article  17 
Article  18 
Article  19 


ChevaUer  Descamps  furnishes  the  committee  with  explanations  regarding 
the  various  formalities  which  are  alluded  to  in  the  last  sentence  of  this  article. 
Article  19  is  adopted. 

Article  20 

Adopted  (ibid.).     The  word  "discussions"  (debats)  is  substituted  for  the 
word  "  discussions"  (discussions). 


748  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

Article  21 
Adopted  (ibid.) 

Article  22 

Shall  the  award  state  the  reasons  upon  which  it  is  based f 

Dr.  Zorn  having  previously  reserved  the  right  to  return  to  his  pro- 
posal/ asks  the  committee  to  add  to  this  article  the  words  "  must  state  the  rea- 
sons upon  which  it  is  based,"  after  these  words :  "  The  award,  given  by  a  ma- 
jority of  votes."  He  believes  that  this  addition  is  necessary  to  the  development 
of  the  law  of  nations.  He  therefore  insists  upon  the  views  which  he  expressed 
in  favor  of  this  idea  at  the  last  meeting. 

Mr.  Martens,  for  his  part,  again  objects  that  while  this  obligation  to  state 
the  reasons  for  the  award  would  no  doubt  be  an  advantage  from  a  legal  view- 
point, it  would  be  a  hindrance  from  a  practical  view-point.  He  distinguishes  two 
different  kinds  of  "  reasons  "  which  might  explain  the  award,  those  of  fact  and 
those  of  law. 

As  for  points  of  law,  the  obligation  to  state  the  reason  for  the  award  prob- 
ably would  not  prevent  the  arbitrators  from  signing,  but  as  to  points  of  fact 
which  give  rise  to  the  controversy  it  would  be  different.  To  state  the  reasons 
therefor  would  very  often  recognize  the  fault  or  inaccuracy  of  one  of  the 
litigant  States. 

Mr.  Holls  supports  the  view  of  Mr.  Martens. 

Mr.  Asser  asks  Mr.  Martens  if  he  can  cite  a  single  arbitral  award  in  which 
the  reasons  were  not  given.  He  adds  that  he  sees  a  strong  guaranty  of  impartiality 
in  the  obligation  imposed  upon  arbitrators  to  state  the  reason  for  their  decision. 
Thanks  to  this  guaranty  the  award  will  never  be  considered  arbitrary. 

Mr.  Martens  has  never  had  any  idea  —  far  from  it  —  of  preventing  the 
[43]  tribunal  from  stating  the  reasons  for  its  judgment:  what  he  desires  on 
the  contrary  is  to  leave  it  entire  freedom  of  action.  Responding  to  the  ques- 
tion of  Mr.  Asser,  he  cites  cases  of  arbitration  such  as  those  of  the  Alabama 
and  the  Bering  Sea  Fisheries  in  which  certain  members  of  the  tribunal  refused 
to  affix  their  signatures  to  the  award  because  it  stated  the  reasons  therefor. 

Qievalier  Descamps,  referring  to  the  observations  which  he  has  already 
expressed,  again  insists  thereon  with  a  view  to  reconciliation.  It  seems  to  him 
impossible  to  deprive  the  parties  of  the  fundamental  guaranties  of  which  Mr. 
Asser  has  spoken. 

After  this  discussion,  the  President  puts  to  vote  the  question  of  adding  the 
words  "  must  state  the  reasons  on  which  it  is  based,"  proposed  by  Dr.  Zorn.  This 
addition  is  adopted  by  a  majority.  Consequently,  Article  22  will  be  redrafted 
as  follows: 

The  award,  given  by  a  majority  of  votes,  must  state  the  reasons  on  which 
it  is  based.  It  is  drawn  up  in  writing  and  signed  by  each  member  of  the 
tribunal. 

Those  members  who  are  in  the  minority  may  record  their  dissent  when 
signing. 

Article  23 
Adopted  {right-hand  column). 

1  See  tenth  meeting. 


! 

i 


ELEVENTH  MEETING,  JUNE  30,  1899  749 

Article  24 
Question  of  revision 

Mr.  Holls  asks  for  the  discussion  of  his  amendment  intended  to  permit  every 
litigant  to  demand  a  rehearing  before  the  same  judges  within  six  months.^ 

In  support  of  this  amendment,  Mr.  Holls  submits  to  the  committee  obser- 
vations which  may  be  summarized  as  follows : 

He  admits,  as  does  Mr.  Martens,  the  principle  that  the  award  should  be 
final  and  without  appeal,  but  his  amendment  respects  this  principle;  what  he 
desires  to  provide  for  is  an  entirely  different  thing  from  the  dissatisfaction  of 
one  of  the  parties,  it  is  for  the  discovery  of  a  new  fact.  It  cannot  be  admitted 
that  this  discovery  should  be  considered  as  not  having  been  made  when  it  may 
completely  modify  the  situation  which  was  before  the  arbitrators.  For  example, 
if  it  happened  that  several  days  after  the  award  an  authentic  map  should  be 
discovered  which  fixed  exactly  the  boundaries  regarding  which  they  had  pre- 
viously had  only  indefinite  data,  it  seems  that  in  that  case,  without  resorting  to 
the  procedure  for  revision,  strictly  speaking,  and  without  its  being  necessary 
to  call  upon  new  judges,  it  will  be  very  natural  for  the  arbitrators  to  be  au- 
thorized to  examine  again  the  situation  which  they  knew  but  imperfectly  before. 

Dr.  Zorn  does  not  think  he  can  yet  express  himself  upon  the  proposition 
of  Mr.  Holls  which  is  undoubtedly  very  worthy  of  receiving  attentive  examina- 
tion.    It  might  be  possible  in  fact  for  a  decision  to  be  final  and  yet  be  erroneous. 

If  the  proposition  of  Mr.  Holls  were  not  adopted,  it  would  then  be  neces- 
sary at  least  to  modify  Article  12,  and  to  grant  to  the  parties  the  right  to  produce 
complementary  acts  even  after  the  close  of  the  discussions.  Furthermore,  it  is 
very  clear  that  the  proposition  of  Mr,  Holls  has  nothing  in  common  with  "  ap- 
peal/' because  an  appeal  is  taken  from  one  judge  to  another  judge,  while  accord- 
ing to  Mr.  Holls  the  same  judges  would  complete,  so  to  speak,  their  former 
information. 

Neither  is  Mr.  Asset  indisposed  to  accept  the  proposition  of  Mr.  Holls, 
but  he  asks  that  it  be  drafted  more  exactly. 

His  Excellency  Sir  Julian  Pauncefote  asks  if  there  are  any  precedents 
in  which  revision  had  occurred  under  circumstances  as  general  as  those  indi- 
cated by  Mr.  Holls.  The  Italian  treaty  expressly  provided  for  cases  in  which 
a  rehearing  might  be  had.  Is  it  possible  to  substitute  for  these  limited  provisions 
a  stipulation  of  a  general  character? 

Chevalier  Descamps  thinks  that  in  these  limited  cases  authority  might  be 
provided,  but  not  generally.  Such  a  provision  can  only  be  left  to  the  initiative 
of  the  parties  when  they  believe  it  to  be  justified. 

Mr.  Holls  thinks  on  the  contrary  that  this  provision  should  be  inserted  in 
the  general  act. 

Mr.  Bourgeois  reads  Article  13  of  the  treaty  between  Italy  and  Argentina 
to  which  Sir  Julian  Pauncefote  has  just  alluded. 

Mr.  Holls  declares  that  he  has  no  preference  as  to  form ;  he  will  accept  any 
text  whatever,  provided  that  the  guaranty  of  the  principle  with  which  his  Gov- 
ernment is  concerned  is  expressly  safeguarded. 
[44]   For  example,  he  would  accept  the  text  of  the  article  of  the  Institute  of 
International  Law  which  Mr.  Descamps  has  read  to  him. 

1  See  Article  7  of  the  American  draft  (see  annex  7). 


750  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

Mr.  Martens  objects  that  Article  12  has  already  provided  that  there  should 
be  two  distinct  phases  in  arbitral  procedure: 

1.  Communication  of  the  documents  relating  to  the  procedure. 

2.  Discussions. 

There  is  no  doubt  that  the  first  period  must  have  an  end.  In  the  case 
of  the  second,  Mr.  Martens  does  not  consider  that  there  is  any  possibility  of  such 
suggestions  as  those  made  by  Mr.  Holls. 

Jonkheer  van  Karnebeek  is  not  favorable  to  a  rehearing. 

1.  How  will  you  define  a  new  fact?  There  is  a  great  deal  to  be  left  to 
judgment,  and  who  will  be  the  judge? 

2.  The  principal  object  of  an  arbitration  is  to  put  an  end  to  a  dispute,  while 
in  private  law  the  essential  thing  is  to  elucidate  the  principle  of  law. 

3.  Mr.  Holls  declares  that  the  rehearing  will  take  place  before  the  same 
judges,  but  does  not  provide  for  the  very  possible  case  where,  in  the  interval  of 
six  months  which  he  has  pointed  out,  the  same  judges  cannot  be  obtained.  This 
objection  should  appear  very  strong  to  Mr.  Holls  who  attaches  so  much  im- 
portance to  the  personality  of  the  judges.  If  the  judges  who  have  pronounced 
the  award  cannot  be  brought  together,  again,  will  you  call  new  judges? 

Then  it  will  be  a  new  arbitration  and  no  longer  a  rehearing. 

4.  Finally,  if  the  new  fact  is  discovered  within  a  period  which  extends  some 
few  days  beyond  the  six  months  provided  for,  the  equity  and  the  guaranties 
which  you  prize  should  require  a  rehearing  on  that  date  also. 

Mr.  Martens  also  wonders  who  will  be  the  judge  of  this  new  fact?  The 
losing  party  no  doubt. 

Will  it  not  be  attempted  to  regard  as  new  facts  arguments  which  it  may 
have  neglected  to  make  use  of  or  which  it  may  not  have  presented  at  the  proper 
time. 

At  the  request  of  Mr.  Holls  the  proposition  is  reserved  and  will  be  taken 
up  again  at  the  next  meeting. 

Article  24  bis 

This  article  was  adopted  except  for  the  substitution  of  the  word  "  Powers  " 
for  the  word  "  States." 

Before  reading  Article  25,  Mr.  Holls  asks  leave  to  put  to  the  committee  the 
question  he  has  already  submitted  regarding  authorizing  any  one  who  makes 
request  therefor  to  make  copies  of  the  arbitral  award  and  of  the  public  docu- 
ments produced  before  the  tribunal   (cases,  counter-cases,  etc.). 

Doubtless  it  will  be  difficult  sometimes  to  distinguish  between  the  public 
documents,  and  documents  which  are  not  public,  but  the  tribunal  itself  will  have 
to  make  this  distinction. 

The  President  asks  Mr.  Holls  to  kindly  prepare  a  text  along  the  line  of 
this  suggestion. 

Mr.  Holls  replies  that  the  text  which  he  has  given  may  serve  as  a  basis 
for  the  discussion. 

Chevalier  Descamps  does  not  think  that  this  proposition  of  Mr.  Holls  can 
be  adopted,  because  the  right  to  decide  whether  there  is  a  reason  for  declaring 
public  documents  produced  in  the  course  of  the  arbitration  proceedings  belongs  to 
the  litigant  States,  and  we  cannot  take  this  right  away  from  them  by  imposing 
publicity  upon  them  in  spite  of  them  or  in  spite  of  one  of  them. 


ELEVENTH  MEETING,  JUNE  30,  1899  751 

Mr.  Rolls  says  that  his  proposition  applies  only  to  the  procedure  of  the 
permanent  tribunal  and  of  course  reserves  all  special  arbitrations. 

The  President,  noting  this  declaration,  proposes  to  adjourn  the  discussion 
of  the  HoLLs'  motion  until  the  second  reading  of  the  plan  for  the  permanent 
tribunal. 

It  is  so  decided. 

Article  25 

Article  25  is  adopted  with  the  substitution  of  the  word  "  against "  instead  of 
"  at  the  expense  of." 

The  25  articles  concerning  arbitral  procedure  are  adopted  upon  second  read- 
ing. 

Reservation  is  made  as  to  Article  4,  regarding  which  Messrs.  Martens  and 
Descamps  asked  the  President  to  kindly  settle  the  tie  vote  by  fixing  the  final 
form  of  this  article. 

In  the  same  way  the  proposal  of  Mr.  Holls  regarding  a  rehearing  will  be 
drawn  up  and  inserted  after  Article  23. 
[45]  The  next  meeting  is  set  for  Saturday,  July  1,  at  2 :30  o'clock. 
Order  of  business : 

1.  Clause  of  revision; 

2.  Second  reading  of  the  plan  for  a  permanent  tribunal. 
The  meeting  adjourns. 


TWELFTH   MEETING 

JULY  1,  1899  1 


Mr  Leon  Bourgeois  presiding. 
The  minutes  of  the  eleventh  meeting  are  read  and  approved. 


Examination,  Upon  Its  Second  Reading,  of  the  Draft  of  "  Code  of 
Arbitration  Procedure  "  (Question  of  Revision)  ^ 

The  President  communicates  his  decision,  rendered  by  virtue  of  the  au- 
thority conferred  upon  him  by  the  committee,  as  to  the  form  of  Article  4  of 
Chapter  III  (Arbitration  procedure).^  He  has  retained  the  article  in  the  right- 
hand  column,  replacing  the  first  section  of  the  sentence  in  paragraph  2  by  these 
words:  "In  the  absence  of  a  convetion  to  the  contrary,"  and  inserted  in 
paragraph  3  "  together  choose." 

Chevalier  Descamps  reads  a  provision  which  he  has  drawn  up  at  the 
request  of  Mr.  Holls  regarding  the  communication  of  the  documents.  He  pro- 
poses to  introduce  it  during  the  discussion  of  the  permanent  tribunal.  This 
question  is  therefore  reserved. 

Question   of  revision 

Mr.  Asser  also  reads  the  draft  which  he  has  adopted,  in  agreement  with 
Mr.  Holls,  relating  to  the  question  of  rehearing  or  revision.* 

Mr.  Asser  observes  that  he  has  considered  the  various  opinions  expressed  in 
the  committee  by  endeavoring  to  limit  as  far  as  possible  the  chances  for  re- 
vision. 

Before  submitting  the  text  presented  by  Mr.  Asser  for  discussion,  the  Presi- 
dent asks  the  advice  of  the  committee  upon  the  principle  of  revision. 

Mr.  Odier  declares  that  he  has  no  instructions  upon  this  subject,  but  that 
his  own  opinion  is  rather  hostile  to  revision.  He  insists  above  all  things  that  ar- 
bitration should  be  final. 

The  vote  upon  the  principle  of  revision:    Ayes:    Asser,  Zorn,  Lammasch, 

iHall  of  the  Truce.  Present:  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; Jonkheer  van  Karnebeek,  vice  president  of  the  Conference ;  their  Excellencies  Count 
Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the  Third  Commission;  Chevalier 
Descamps,  president  and  reporter;  Messrs.  Asser,  Baron  d'Estournelles  de  Constant, 
Holls.  Lammasch,  Martens,  Odier,  Dr.  Zorn,  members  of  the  committee  of  examination. 

2  See  annex  9. 

^Ibid. 

*  See  this  text  below  as  modified  at  the  suggestion  of  the  President. 

752 


TWELFTH  MEETING,  JULY  1,  1899  753 

Nigra,  Pauncefote,  Holls.     Nays:     Odier,  Descamps,  Martens. 
[46]  The  principle  being  accepted,  the  President  passes  to  the  discussion  of 
the  text. 

His  Excellency  Sir  Julian  Pauncefote  observes  that  revision  cannot  be 
demanded  except  in  the  case  where  new  documents  have  been  discovered ;  does 
this  exclude  fraud? 

Mr.  Holls  replies  that  fraud  evidently  constitutes  a  case  of  nullification  and 
a  new  fact. 

The  draft  of  Mr.  Asser  may  be  so  understood. 

His  Excellency  Sir  Julian  Pauncefote  thinks  that  we  might  refer  to  the 
text  of  the  Italian  treaty  which  seems  to  him  a  useful  precedent. 

Mr.  Asser  believes  that  the  article  of  this  treaty  is  much  too  broad,  because 
it  provides  in  reality  not  only  for  revision  but  for  appeal. 

The  President  thinks  that  we  must  carefully  distinguish  between  the  dis- 
covery of  an  error  and  the  discovery  of  a  new  fact.  In  the  former  case  it  is  not 
possible  to  reopen  the  award,  because  it  would  be  putting  the  conscience  of  the 
judges  in  question. 

In  the  second  case  the  conscience  of  the  judges  is  not  in  question.  It  must 
also  be  well  understood  that  a  fact  is  new  because  it  was  not  known  at  the  time 
to  the  arbitrators  or  to  the  parties  to  the  suit.  Cannot  the  article  be  redrafted 
with  this  in  mind? 

His  Excellency  Sir  Julian  Pauncefote  asks  to  have  read  an  interesting  com- 
mentary on  Article  13  of  the  treaty  between  Italy  and  Argentina  written  by  Pro- 
fessor CoRSi  which  touches  the  point  under  discussion.^ 

After  having  read  this  commentary,  the  President  asks  who  will  establish 
the  existence  of  fraud:  he  endorses  the  remarks  of  Mr.  Asser  regarding  the  too 
general  character  of  the  article  of  the  treaty  between  Italy  and  Argentina.  He 
emphasizes  the  difficulties,  which  are  here  so  serious,  which  will  be  raised  by  the 
adoption  of  this  article. 

The  committee,  sharing  this  point  of  view,  does  not  adopt  the  text  of  the 
treaty  between  Italy  and  Argentina. 

Mr.  Martens  declares  that  revision  is  contrary  in  principle  to  the  very 
nature  of  arbitration,  except  of  course  where  there  are  provisions  to  the  con- 
trary. He  does  not  wish  to  refer  again  to  the  danger  of  prolonging  disputes 
which  it  is  desired  to  end.  But  he  recalls  cases  where,  after  the  arbitral  decision 
was  rendered,  the  losing  party  proclaimed  that  it  had  documents  which  had  not 
been  submitted  to  the  arbitrator.  If  the  losing  party  is  given  this  right  for 
three  months,  why  not  give  it  to  him  for  six  months  or  more? 

His  Excellency  Count  Nigra  asks  leave  to  present  a  question :  if,  to  suppose 
an  impossible  case,  we  assume  that  a  Government  has  produced  a  forged  docu- 
ment, what  tribunal  will  be  competent  to  declare  the  fraud? 

Mr.  Asser  does  not  contest  the  importance  of  the  argument  of  Mr.  Martens  ; 
that  is  why  he  has  adopted  a  period  of  three  months,  a  very  short  period  when 
compared  to  the  duration  of  an  arbitration,  which  is  generally  so  long.  Cer- 
tainly all  that  Mr.  Martens  says  is  true,  if  we  admit  that  there  has  been  no 
fraud  or  omission  of  a  document.  But  in  the  contrary  case,  would  it  not  be 
better  to  prolong  the  dispute  than  to  sanction  an  injustice? 

1  International  Arbitration,  International  Tribunal,  by  Evan  Darby  (Peace  Society,  New 
Broad  street,  47  E.  C),  Plan  of  Professor  Corsi,  Article  40,  p.  163. 


754  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

His  Excellency  Sir  Julian  Pauncefote  supports  this  opinion.  Both  views 
have  their  defects,  but  in  case  of  doubt  it  is  better  to  do  everything  in  order  to 
repair  an  injustice. 

Mr.  Asser:  Replying  to  the  question  of  Count  Nigra,  the  arbitration 
tribunal  itself  would  decide  whether  it  was  false  or  not. 

Mr.  Holls  is  of  the  opinion  that  the  period  of  three  months  is  sufficient. 

In  general,  attention  is  very  keenly  aroused  concerning  an  arbitration,  and 
if  in  spite  of  this,  a  new  fact  is  discovered,  it  surely  will  be  discovered  within 
a  few  days  or  a  few  weeks  at  the  most  after  the  rendering  of  the  award. 

Three  months  seems  to  be  a  sufficient  period  under  these  conditions.  If 
there  is  no  rehearing,  we  gain  three  months  it  is  true,  looking  at  the  matter  from 
the  view-point  of  ending  the  dispute,  but  we  run  the  risk  of  not  being  able  to 
repair  an  obvious  injustice. 

Chevalier  Descamps  replies  that  the  possibility  of  an  injustice  is  in- 
herent in  all  human  courts;  we  cannot  however  in  providing  for  such  injustice 
prejudice  the  exercise  of  justice  itself. 

Furthermore,  what  would  be  the  situation  of  the  arbitrators  during  these 
three  months?  They  will  always  be  exposed  to  the  risk  of  being  called  together 
again. 

Mr.  Martens  desires  to  make  the  question  definite.  There  are  two  distinct 
points  of  view  to  be  considered. 

1.  Justice. 

2.  International  conciliation. 

As  lawyers  we  are  certainly  conscientiously  in  favor  of  revision.  But  re- 
vision is  a  dangerous  weapon  which  will  shake  the  authority  of  arbitra- 
J47]  tion.  The  award  rendered  will  be  subject  to  all  the  attacks  of  the  press, 
encouraged  by  this  hope  that  it  is  not  final. 

In  countries  having  a  parliamentary  Government  opinion  might  call  upon 
the  Government  to  demand  a  rehearing.  The  dispute  would  thus  be  perpetuated 
instead  of  extinguished.  Now  what  is  our  purpose  ?  Is  it  not  international  peace, 
and  should  it  not  occupy  our  minds  above  all  things  ? 

Mr.  Holls  replies  that  nothing  will  discredit  arbitration  more  than  to  let  this 
fear  of  a  possible  irreparable  injustice  gain  ground. 

The  President  remarks  that,  in  fact,  the  question  presented  amounts  to 
'delaying  the  execution  of  the  arbitral  award  for  three  months.  According  to  his 
view  there  is  no  reason  whatever  for  the  discovery  of  the  new  fact  on  the  very 
day  following  the  decision,  as  Mr.  Holls  thinks.  The  question  of  revision  will 
arise  later,  even  years  afterward,  upon  the  death  for  example  of  one  of  the 
persons  interested  in  the  dispute,  thanks  to  the  posthumous  discovery  of  docu- 
ments. And  again,  the  additional  three  months  will  produce  only  inconvenience 
without  any  of  the  advantages  which  you  seek.  But,  the  President  concludes, 
the  committee  having  pronounced  itself  in  favor  of  the  principle  of  revision,  we 
are  concerned  with  adopting  a  text  which  will  raise  the  fewest  possible  objections. 
The  President  proposes  the  following  draft: 

The  revision  of  the  arbitral  award  cannot  be  demanded  except  from  the 
tribunal  which  pronounced  it,  and  only  on  the  ground  of  the  discovery  of  some 
new  fact  which  is  of  a  nature  to  exercise  a  decisive  influence  upon  the  award 
and  which,  at  the  time  of  the  award,  was  unknown  to  the  tribunal  itself  and  to 
the  parties. 

Proceedings  for  revision  can  only  be  instituted  by  a  decision  of  the 


TWELFTH  MEETING,  JULY  1,  1899  755 

tribunal  declaring  the  demand  admissible,  and  expressly  recording  the  exist- 
ence of  the  new  fact,  and  recognizing  in  it  the  character  described  in  the 
preceding  paragraph. 

No  demand  for  revision  may  be  received  three  months  after  notification 
of  the  award. 

Messrs.  Holls  and  Asset  accept  this  draft. 

Mr.  Martens  is  absolutely  opposed  to  it,  as  is  also  Chevalier  Descamps. 

His  Excellency  Sir  Julian  Pauncefote  asks  that  the  following  be  added  "  in 
the  absence  of  provisions  to  the  contrary."  This  is  agreed  to,  and  Chevalier 
Descamps  will  formulate  this  idea  in  order  to  add  it  to  the  draft  proposed  by  Mr. 
Bourgeois. 

The  President  asks  whether  mention  should  not  be  made  of  the  reservation 
of  vested  rights. 

Mr.  Martens  insists  upon  stating  the  reasons  for  his  vote,  saying  that  the 
provision  for  a  rehearing  amounts  to  a  suspension  of  the  execution  of  the  arbi- 
tration for  three  months. 

The  award  will  therefore  be  provisional,  and  this  because  of  a  possibility 
which  will  not  happen  except  in  rare  instances. 

Upon  being  proposed  and  put  to  vote  by  the  President,  the  text  is  adopted 
by  a  majority  vote. 

(Messrs.  Descamps  and  Martens  vote  against  it;  Mr.  Odier  allies  himself 
with  the  majority.) 


Examination,  upon  Its  Second  Reading,  of  the  "  Plan  for  a  Permanent 
Tribunal  of  Arbitration  "  ^ 

Chevalier  Descamps  reads  Article  1.  So  far  as  form  is  concerned,  he  pro- 
poses to  make  this  article  agree  with  the  preceding  Article  13,  Consequently, 
Article  13  is  modified  as  follows:  '^  With  a  view  to  developing  the  practice  of 
arbitration,  the  high  contracting  parties,  etc.  .  .  ." 

Dr.  Zorn  recalls  the  reservation  which  he  had  made  regarding  the  principle 
of  a  permanent  arbitral  tribunal.-  He  is  happy  to  be  able  to  declare  to-day  that 
his  Government  has  accepted  the  principle  of  this  innovation  in  the  form  sug- 
gested by  Sir  Julian  Pauncefote,  and  solely  because  of  the  freedom  left  to 
Governments  to  choose  their  arbitrators  voluntarily  from  a  list.  His  Govern- 
ment recognizes  the  importance  and  magnitude  of  this  new  institution,  but  it  has 
some  objections  to  present,  first  as  to  the  name  of  the  tribunal  and  second  as  to 
the  questions  in  connection  with  Article  10.  He  will  not  enter  into  the  latter 
until  a  discussion  of  this  article  is  taken  up. 

Dr.  Zorn  proposes  as  a  title  these  words :  "  Permanent  Court  of  Arbi- 
trators," and  upon  objections  being  raised  to  the  form,  he  accepts  the  following 
title :  "  Permanent  Court  of  Arbitration  "  in  place  of  the  word  "  Tribunal." 

The  committee  accepts  this  draft.  Chapter  H  will  therefore  be  entitled  as 
follows : 

1  See  annex  9. 

2  See  the  minutes  of  the  sixth  session. 


756  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

[48]  II. —  The  Permanent  Court  of  Arbitration 

Article  1 

Adopted  with  the  following  modification :  "  Court "  instead  of  "  Tribunal  ** 
(line  6)  and  substitution  in  the  last  part  of  the  sentence  of  these  words  (line  9)  : 
"  In  accordance  with  the  rules  of  procedure  inserted  in  the  present  Convention." 

Article  1  bis 

Adopted,  except  for  the  substitution  of  the  word  "  Court "  for  the  word 
"Tribunal"  (line  1),  and  the  omission  of  the  words  "whether  obligatory  or 
voluntary."     The  last  word  of  this  article  "  arbitral "  is  omitted. 

Article  2 

Chevalier  Descamps  asks  if  the  words  "  Central  Bureau  "  express  the  intent 
of  the  committee ;  it  is  in  reality  an  International  Bureau  which  we  are  creating. 

This  last  designation  is  adopted.  The  entire  article  is  voted  upon  and 
adopted  upon  the  second  reading  in  the  following  form : 

An  International  Bureau  established  at  The  Hague  under  the  direction  of 
a  permanent  secretary  general,  serves  as  registry  for  the  Court. 

It  is  the  channel  for  communications  relating  to  its  meetings. 

It  has  custody  of  the  archives  and  conducts  all  the  administrative  busi- 
ness. 

Mr.  Hells  proposes  an  amendment  in  the  following  terms  at  the  end  of  this 
article :  "  It  communicates  and  delivers  copies  of  the  official  documents  of  the 
Court  in  accordance  with  rules  adopted  by  it." 

Dr.  Zorn  observes  that  this  provision  is  contained  in  the  last  paragraph  of 
Article  2  conferring  upon  the  Bureau  the  conduct  of  all  the  administrative  busi- 
ness. 

Jonkheer  van  Karnebeek  declares  that  we  cannot  in  every  case  leave  to  the 
diplomatic  corps  at  The  Hague  the  duty  to  decide  what  shall  be  published.  It 
would  be  better  to  entrust  this  duty  to  the  arbitrators  who  have  been  the  judges. 

Dr.  Zorn  objects  that  the  question  is  not  only  one  relating  to  the  tribunal 
but  also  and  primarily  one  pertaining  to  the  Governments. 

The  President  wonders  whether  Mr.  Holls'  provision  does  not  defeat  its 
own  end,  because  it  is  of  such  a  character  as  to  turn  Governments  away  from  the 
permanent  tribunal  out  of  fear  of  publicity. 

Mr.  Holls  admits  this  view  and  seconds  the  suggestion  of  Dr.  Zorn  who 
believes  that  with  an  explanation  which  the  report  of  the  subject  will  include,  the 
last  paragraph  of  Article  2  is  sufficient  to  ensure  the  publicity  of  documents. 
Consequently,  it  is  understood  that  the  reporter  will  kindly  indicate  in  his  com- 
mentary the  interpretation  which  this  paragraph  permits. 

Furthermore,  publicity  will  be  subject  to  the  two- fold  consent  of  the  Bureau 
and  the  Governments. 

Article  3 

Paragraph  1  is  adopted  without  change. 

In  paragraph  2  Court  will  be  written  instead  of  Tribunal  (line  2),  and  Inter- 
national in  place  of  Central  (line  5). 


TWELFTH  MEETING,  JULY  1,  1899  757 

Paragraphs  3;  4  and  5  are  adopted  except  for  the  word  Court  which  will  be 
used  instead  of  Tribunal. 

Paragraph  6  is  adopted  in  the  following  form  following  modifications  and 
additions  suggested  by  his  Excellency  Count  Nigra  and  by  Mr.  Asset: 

In  case  of  the  death  or  retirement  ^  of  a  member  of  the  Court,  his  place 
is  filled  in  the  same  way  as  he  was  appointed.  Any  alteration  of  the  list  of 
arbitrators  is  communicated  to  the  International  Bureau  and  without  delay 
brought  by  the  latter  to  the  knowledge  of  the  signatory  Powers. 

Mr.  Holls  asks  that  we  write  into  this  article  the  principle  suggested  by 
Chevalier  Descamps  regarding  the  immunity  of  arbitrators. 

It  is  decided  that  this  principle  will  be  inserted  in  Article  4,  subject  to  fur- 
ther revision. 

[49] 

The  first  two  paragraphs  of  Article  4  are  combined  and  adopted  in  the  fol- 
lowing form: 

The  signatory  Powers  which  desire  to  have  recourse  to  the  Court  for 
the  settlement  of  their  differences  select  from  the  general  list  such  number 
of  arbitrators  as  may  have  been  agreed  upon  between  them. 

They  notify  to  the  Bureau  their  intention  to  have  recourse  to  the  Court 
and  the  name  of  the  arbitrators  whom  they  have  designated. 

Paragraph  3  is  modified  and  redrafted  as  follows:  In  the  absence  of  a 
convention  to  the  contrary,  the  arbitral  tribunal  will  be  formed  according  to  the 
rules  set  forth  in  Article  10  of  the  present  Convention. 

It  is  understood  that  the  same  formula  will  be  adopted  for  Article  4  of  the 
code  of  procedure.  The  last  two  paragraphs  of  Article  4  are  adopted  without 
modification. 

Question  of  calling  attention  to  arbitration 

The  President  observes  that  the  French  delegation  has  proposed  ^  to  assign 
to  the  International  Bureau  the  duty  of  calling  the  attention  of  the  parties  to  the 
existence  of  a  permanent  tribunal,  in  order  to  encourage  recourse  thereto.  There 
is  good  reason  to  take  this  precaution  so  that  Powers  may  not  be  stopped  by  any 
feeling  of  honor,  and  that  each  one  of  them  may  not  feel  obliged  to  wait  for  the 
other  to  begin.  Why  not  make  a  provision  in  connection  with  the  permanent 
tribunal  analogous  to  the  clause  presented  by  Count  Nigra  relating  to  good  offices 
and  mediation,  and  declare  that  such  a  reminder  under  these  circumstances  shall 
not  be  regarded  as  an  unfriendly  act?  This  would  be  a  great  service  to  the 
cause  and  operation  of  international  arbitration. 

Mr.  Lammasch  says  that  there  is  great  difference  between  the  oflFer  of  medi- 
ation and  the  reminder  of  the  existence  of  arbitration.  Might  not  this  reminder 
be  somewhat  offensive  to  the  parties  in  certain  cases  ? 

His  Excellency  Count  Nigra  was  also  of  the  same  opinion  as  Mr.  Bourgeois 
when  he  proposed  originally  that  every  Power  should  have  the  right  to  offer  medi- 
ation or  arbitration  —  and  that  this  initiative  should  not  be  considered  as  an 
unfriendly  act. 

1  It  is  understood  that  the  word  "  retirement "  will  be  taken  in  its  broadest  sense  (act 
of  withdrawing)  —  to  be  noted  in  the  report. 

2  See  the  minutes  of  the  sixth  meeting. 


758  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

Baron  d'Estournelles  supports  the  opinion  of  Mr.  Bourgeois.  Some  means 
must  be  found  to  put  the  Permanent  Court  of  Arbitration  into  operation  and,  as 
the  President  has  said,  to  accustom  the  Powers  to  resort  to  this  new  organiza- 
tion. To  accompUsh  that  it  is  necessary  to  help  Governments  to  take  the  step. 
It  matters  Httle  what  means  are  used  to  start  action  by  them.  Considering  the 
susceptibiHty  of  public  opinion  and  the  reluctance  of  each  Government  to  decide 
before  the  other,  it  is,  so  to  speak,  necessary  to  have  a  mechanism  which  will 
operate  on  its  own  motion,  and  put  Governments  in  a  position  to  speak.  It  is 
necessary  to  have  an  automatic  process  which  will  oblige  them  to  make  a  decision 
in  favor  of  or  against  arbitration  before  public  opinion  and  parliaments;  if  we 
find  this  mechanism,  and  if  we  designate  the  person  charged  with  the  duty  of 
sending  out  the  letter  of  invitation  then  the  situation  will  be  entirely  changed. 
It  will  be  as  difficult  for  a  Government  to  decline  to  resort  to  arbitration  as  it 
was  for  it  to  accept  it  up  to  that  time  in  serious  cases. 

Mr.  Hells  endorses  this  view-point. 

Mr.  Martens  would  ask  nothing  better  than  to  be  able  to  support  the  sug- 
gestion of  the  French  delegation  himself,  but  it  seems  to  him  difficult  to  apply  it. 
Who  will  be  the  intermediary?  The  Bureau?  It  will  not  have  sufficient  moral 
authority.  The  Council?  The  diplomatic  corps  will  not  be  sufficiently  inde- 
pendent; each  one  of  its  members  will  be  bound  by  his  instructions. 

The  President  recognizes  the  weight  of  the  objections  of  Mr.  Martens,  but 
they  do  not  convince  him.  Doubtless  there  will  be  difficulties  to  be  met  by  the 
Powers,  but  that  is  still  another  reason  to  seek  some  method;  if  not,  we  shall  have 
reached  only  apparent  results,  nine  times  out  of  ten  a  feeling  of  honor  will  prevent 
States  which  most  desire  to  resort  to  arbitration  from  deciding  to  do  so.  Let  us 
therefore  seek  the  form  since  we  are  in  agreement  upon  the  principle. 

His  Excellency  Count  Nigra  and  Mr.  Odier  recognize  the  importance  of  the 
arguments  invoked  in  favor  of  Mr.  Bourgeois'  proposition. 

Dr.  Zorn  does  not  deny  this  importance,  but  he  too  believes  that  it  is  neces- 
sary to  seek  some  form  to  make  the  idea  practicable. 

Chevalier  Descamps  believes  that  calling  attention  of  the  parties  to  the 
existence  of  a  permanent  court  and  the  advice  to  resort  to  this  court  are  essen- 
tially of  the  same  character  as  good  offices.  A  practical  formula  must  be  sought 
in  this  direction. 

After  a  general  discussion,  the  committee  decides  to  introduce  a  provision, 
the  text  of  which  will  be  adopted  later,  with  a  view  to  providing  that  arbi- 
[50]  tration  may  be  recommended  and  that  the  advice  will  be  considered  accord- 
ing to  the  expression  of  Chevalier  Descamps  :   "  like  an  offer  of  good 
offices." 

Adopted. 

The  next  meeting  is  set  for  Monday,  July  3,  at  2 :15. 

Order  of  business : 

1.  Continuation  of  the  second  reading  of  the  plan  for  the  Permanent  Court  of 
Arbitration. 

2.  Articles  7  to  13  "  The  system  of  arbitration  and  disputes  dependent 
thereon."  ^ 

The  meeting  adjourns. 

^  See  annex  9. 


THIRTEENTH    MEETING 

JULY  3,  1899  1 


Mr.  Leon  Bourgeois  presiding. 

The  minutes  of  the  last  meeting  are  read  and  approved. 
The  order  of  business  calls  for  the  continuation  of  the  discussion  of  the 
plan  for  the  Permanent  Court  of  Arbitration. 

Examination,  Upon  Its  Second  Reading,  of  the  Plan  for  the  "  Permanent 

Court  of  Arbitration  " —  Continued  —  (Question  of  the 

"Duty  of  Powers") 2 

The  President  recalls  that  the  committee  at  its  last  meeting  decided  upon  the 
principle  to  introduce  among  the  provisions  relative  to  the  Court  of  Arbitration, 
an  additional  article  intended  to  facilitate  access  to  the  Court. 

Baron  d'Estournelles  asks  to  be  heard  in  order  to  submit  to  the  committee 
a  proposal  which  he  has  drawn  up  in  support  of  that  of  Mr.  Bourgeois. 

Gentlemen  :  The  proposal  which  I  have  the  honor  to  submit  to  you  in  sup- 
port of  that  of  Mr.  Leon  Bourgeois  is  on  my  own  personal  responsibility,  as  I 
have  not  had  time  to  consult  our  Government,  it  is  therefore  binding  upon  me 
alone ;  it  is  another  contribution  to  the  many  efforts  which  for  six  weeks  you  have 
been  making  with  an  admirable  spirit  of  harmony  and  energetic  good-will  to  finish 
well  the  great  task  which  is  confided  to  us. 

We  are  approaching  the  end  of  our  labors,  we  are  going  to  create  a  court,  a 
code  of  international  arbitration.  That  is  something  when  we  recall  that  nothing 
of  its  kind  existed  before  our  meeting  at  The  Hague.  It  is  but  little  when  we 
think  of  all  that  humanity  expects  from  us.  At  least  we  must  see  that  the  little 
accomplished  shall  be  real.  The  Conference  has  already  caused  great  misconcep- 
tion among  the  masses,  notably  by  refusing  to  put  a  limit  upon  the  increase  of 
armaments  and  upon  existing  armies ;  what  will  be  the  situation  if  our  Court  of 
Arbitration  shall  exist  only  on  paper,  and  if  instead  of  fulfilling  our  duty  which 
is  to  avoid  war,  we  limit  ourselves  to  formulating  declarations  without  effect  ? 

Now  we  know  that  a  permanent  court  is  in  danger  of  not  being  a  living 
organism.     Mr.  Bourgeois  pointed  out  in  the  last  meeting  that  nine  out  of  ten 

1  Hall  of  the  Truce.  Present :  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; Jonkheer  van  Karnebeek,  vice  president  of  the  Conference;  their  Excellencies  Count 
Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the  Third  Commission;  Messrs.  As- 
SER,  Baron  d'Estournelles  de  Constant,  Martens,  Holls,  Lammasch,  Odier,  Zorn,  mem- 
bers of  the  committee  of  examination. 

2  See  annex  9. 

759 


760  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

times,  at  the  moment  when  a  serious  dispute  arises,  the  interested  Powers 
[51]  would  not  dare  to  resort  to  the  Court  and  that  the  greater  number  of  them, 
especially  the  weaker  Powers,  would  be  stopped  by  national  scruples,  by  a 
feeling  of  honor,  by  the  moral  impossibility  of  taking  the  first  step.  We  there- 
fore find  ourselves  face  to  face  with  a  truly  ludicrous  situation :  we  are  creating 
institutions  to  prevent  war  and  the  Court  to  which  States  may  resort  on  any  occa- 
sion —  except  when  war  is  threatened ! 

How  will  we  avoid  attaining  a  result  so  contrary  to  our  intentions  ?  Gentle- 
men, I  see  only  one  practical  method,  one  which  is  really  efficacious.  Let  us  have 
the  courage  to  go- to  the  bottom  of  things  and  expressly  call  attention  in  our  gen- 
eral act  to  the  fact  that  States  have  not  only  common  interests  and  rights  but 
duties. 

Among  the  first  of  these  duties  all  the  Governments  have  more  and  more 
the  duty  of  listening  to  public  opinion.  Think  of  the  reception  which  awaits  us 
when  each  of  us  returns  to  his  country  next  October  and  has  to  explain  not  his 
intentions  but  the  material  results  of  the  Conference,  if  we  are  obliged  to  say  that 
these  results  are  illusory,  and  if  the  radical  parties  taking  advantage  of  our  admis- 
sion of  powerlessness  go  about  everywhere  proclaiming  with  their  habitual  violence 
that  the  labors  of  our  assembly  have  been  only  a  shadow,  a  cruel  hoax ! 

I  admire,  but  alas !  I  cannot  share,  the  optimistic  belief  developed  by  Colonel 
Gross  von  Schwarzhoff  in  his  recently  published  speech. 

I  even  question  whether  it  is  prudent  to  affirm  this  optimism  too  much.  We 
cannot,  alas,  disguise  from  ourselves  the  fact  that  in  all  civilized  countries  the 
laboring  population  suffers  from  the  same  evil,  the  imposition  upon  their  shoulders 
of  three  new  and  excessive  burdens : 

1.  The  weight  of  a  competition  unknown  in  the  past  which  the  increase  in 
the  means  of  transportation  has  produced  in  all  parts  of  the  world. 

2.  The  increase  in  the  development  of  machinery. 

3.  The  obligations  of  an  armed  peace. 

Can  we  without  danger  declare  that  these  burdens  are  not  too  heavy? 
Perhaps  the  people  will  not  reply.  Still,  I  am  not  certain  of  this  point,  because 
you  know  the  general  state  of  mind  in  Europe,  and  the  demonstrations  which 
break  out  simultaneously  in  so  many  points  should  put  us  on  our  guard.  In  any 
case,  when  their  discontent  is  translated  into  action,  we  shall  not  only  see  self- 
deluded  Governments  threatened,  but  we  shall  see  all  civilized  nations  menaced 
precisely  because  the  same  interests,  the  same  duties,  and  a  joint  liability  unite 
them.  It  is  because  of  this  liability  that  I  beg  you,  gentlemen,  to  perform  a 
work  truly  alive  and  beneficent,  to  show  yourselves  an  example  to  the  Govern- 
ments of  that  initiative  which  the  world  is  so  impatiently  waiting  for  us  to  ex- 
hibit; I  propose  to  you  the  method,  not  to  oblige  States  in  dispute  to  resort  to 
arbitration,  but  —  what  amounts  to  the  same  thing  —  by  safeguarding  their  in- 
dependence and  their  dignity,  the  means  to  put  them  in  a  position  to  choose  between 
arbitration  and  war,  to  formally  declare  or  accept  in  the  face  of  opinion  the  final 
expedient  of  a  pacific  settlement.  You  will  obtain  this  invaluable  result  by  chang- 
ing only  one  word  in  our  text,  by  substituting  for  the  ideal  of  right  the  superior 
ideal  of  duty.  Yes,  the  word  "  duty  "  will  give  to  the  general  act  of  The  Hague 
all  its  moral  effect,  all  its  strength ;  it  responds  to  the  call  of  our  consciences,  and 
the  generous  intentions  of  the  Czar,  to  the  hopes  of  humanity  which  has  its  eyes 
fixed  upon  us. 

Baron  d'Estournelles  proposes  therefore  to  add  the  following  article : 


THIRTEENTH  MEETING,  JULY  3,  1899  761 

The  signatory  Powers  consider  it  their  duty,  if  a  serious  dispute  threat- 
ens to  break  out  between  two  or  more  of  them  to  remind  these  latter  that  the 
Permanent  Court  is  open  to  them,  and  authorize  the  secretary  general  of  the 
Bureau  to  place  himself  when  the  event  occurs,  at  the  disposal  of  the  inter- 
ested parties,  by  addressing  a  letter  to  their  representatives  in  the  Nether- 
lands. 

The  exercise  of  this  authority  shall  not  be  considered  as  an  unfriendly 
act. 

Baron  d'Estournelles  then  reads  a  draft  of  the  letter  which  the  secretary 
general  would  address  to  the  representatives  of  the  Powers  in  controversy  at 
The  Hague: 

Your  Excellency:  The  signatory  Powers  of  the  general  act  of  The 
Hague  having  expressly  bound  themselves  to  neglect  no  means  of  promoting 
the  pacific  settlement  of  disputes  which  might  threaten  to  break  out  between 
two  or  more  of  them  and  these  Powers  having,  by  Article  10  of  the  same  act, 
authorized  the  secretary  general  of  the  International  Bureau  at  the  proper 
time  to  recall  this  obligation  to  the  interested  parties,  I  have  the  honor  to 
advise  you  that  I  am  at  your  disposal  for  the  purpose  of  convoking  the  Per- 
manent Court  of  Arbitration  in  case  the  Government  of  .  .  .  should  feel 
itself  under  an  obligation  to  notify  me  of  its  intention  in  this  regard  as  well 
as  of  the  names  of  the  arbitrators  designated. 

[52]  A  general  discussion  takes  place  regarding  the  proposal  of  Mr.  d'Estour- 
nelles. 

Mr.  Holls  considers  that  the  idea  expressed  therein  is  very  important.  If 
it  can  be  made  practical  he  will  be  sincerely  gratified,  but  he  would  like  to  have 
time  to  think  about  it  in  order  to  be  sure  that  Governments  might  not  be  em- 
barrassed by  the  suggestion  of  arbitration.  So  far  as  the  United  States  of 
America  itself  is  concerned,  the  proposition  will  have  to  be  examined  with  care 
to  see  whether  it  might  not  aflfect  the  distinction  established  by  the  traditional 
policy  of  this  country  between  questions  which  are  purely  European  and  purely 
American. 

Mr,  Odier  has  listened  with  a  great  deal  of  interest  to  the  exposition  of  Mr. 
d'Estournelles,  He  asks  whether  it  would  not  be  in  line  with  the  idea  of  the 
latter  to  provide  for  the  Powers  not  represented  at  The  Hague. 

Baron  d'Estournelles  replies  in  the  affirmative.  The  secretary  general 
should  write  directly  to  their  Ministers  of  Foreign  Affairs. 

His  Excellency  Count  Nigra  thinks  that  it  is  perhaps  difficult  to  write  into 
the  very  body  of  the  convention  the  article  proposed  by  Mr.  d'Estournelles, 
but  could  not  an  analogous  idea  be  expressed  in  the  final  protocol? 

Dr.  Zorn:  The  desire  of  Mr.  d'Estournelles  is  a  desire  common  to 
all  of  us,  we  cannot  express  it  better  than  he  has  done.  I  support  it  with  all  my 
heart,  but  a  serious  difficulty  stands  in  the  way  of  its  realization  :  that  is  the  choice 
of  the  secretary  general  of  the  Bureau ;  can  we  require  States  to  accept  the  advice 
of  this  secretary  ? 

He  will  not  have  the  necessary  moral  authority.  He  therefore  will  not  have 
a  chance  to  succeed. 

Finally,  I  appreciate  the  desire  of  Mr.  d'Estournelles,  but  I  ask  that  it  be 
modified,  so  as  not  to  specially  contemplate  the  secretary  general. 

Mr.  Asset  makes  reservations,  because  the  Netherland  Minister,  being  presi- 


762  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

dent  of  the  administrative  council,  would  assume  a  great  responsibility  upon  the 
sending  of  the  letter  by  the  secretary  general.  Having  stated  that,  however,  he 
desires  to  reply  to  the  objections  of  Dr.  Zorn. 

In  the  first  place,  the  slight  political  importance  of  the  duties  of  the  secretary 
general  is  of  benefit  here :  his  very  weakness  protects  him  and  shelters  him  from 
the  sensitiveness  of  the  States. 

'  In  the  second  place,  he  will  simply  make  a  communication  by  virtue  of  the 
authority  of  the  Powers ;  he  will  be  their  messenger. 

His  Excellency  Sir  Julian  Pauncefote  declares  that  he  also  is  in  favor  of  the 
proposition  of  Mr.  d'Estournelles. 

His  Excellency  Count  Nigra  thinks  that  if  the  article  proposed  by  Mr. 
d'Estournelles  were  adopted,  we  might  omjt  the  second  paragraph  concerning 
friendly  character,  since  we  are  dealing  with  the  action  of  a  mere  functionary. 

Chevalier  Descamps  estimates  highly  the  purpose  in  view  and  recalls  the  fact 
that  he  himself  in  a  recent  study  concerning  "  The  Law  of  Peace  and  War  "  in- 
sisted upon  the  rights  and  duties  of  the  "  Messengers  of  Peace,"  in  their  relation 
to  the  maintenance  of  general  peace.  But  he  fears  that  the  secretary  general 
of  the  Bureau  lacks  authority,  and  that  an  awkward  or  ill-timed  intervention  on 
his  part  would  compromise  the  institution  of  the  arbitral  court.  He  is  fearful  of 
leaving  the  secretary  general  to  be  the  judge  of  the  time  when  he  should  send 
out  his  letter  calling  attention  to  the  Court.  He  points  out  an  experience  under 
almost  the  same  conditions  which  fell  to  the  secretary  general  of  the  Interparlia- 
mentary Conference.  Would  it  not  be  better  and  more  practical  to  say  that 
"  calling  attention  to  the  Court  of  Arbitration  "  is  a  form  of  good  offices. 

Chevalier  Descamps  desires  nothing  better  than  to  find  a  phrase  implying  the 
idea  of  a  duty  to  be  fulfilled,  but  that  of  Mr.  d'Estournelles  does  not  satisfy  him. 

Dr.  Zorn  shares  the  apprehensions  expressed  by  Chevalier  Descamps. 
In  the  first  place,  he  says,  our  work  will  not  be  so  modest  as  Mr.  d'Estournelles 
points  out.  In  any  case,  we  would  not  be  promoting  it  if  we  adopted  the  proposed 
machinery.  Will  the  secretary  general  be  able  to  judge  whether  the  dispute  is 
acute,  and  will  the  Netherland  Minister  of  Foreign  Affairs  take  the  responsibility 
of  designating  the  time  when  a  dispute  seems  to  him  to  be  acute  in  order  to  author- 
ize the  secretary  to  send  his  letter?  The  German  Government  could  not  accept 
a  secretary  with  such  political  responsibility. 

While  affirming  my  sympathy  with  the  views  of  Mr.  d'Estournelles,  I 
should  like,  he  adds,  to  see  it  made  practical,  but  in  another  form.  Separate  the 
idea  of  a  secretarial  staff  from  that  of  notice  to  the  Powers. 

The  latter  is  worthy  of  recommendation,  and  Dr.  Zorn  is  ready  with  this 
reservation  to  support  the  project  of  Mr.  d'Estournelles. 

Baron  d'Estournelles  replies  that  he  does  not  minimize  the  work  of  the  com- 
mittee, far  from  it,  but  he  suggests  precautions  in  order  that  this  work  may  not 
be  rendered  illusory.  He  has  sought  one  method  but  he  would  be  happy  to 
[53]  have  a  better  suggested.  He  thinks  however,  that  it  is  precisely  to  the 
advantage  of  the  secretary  general  that  his  position  is  modest,  and  his  char- 
acter that  of  an  automatic  instrument,  it  is  the  spring  which  would  put  arbitral 
procedure  into  motion.  He  is  the  only  person  upon  whose  initiative,  without 
offending  any  one.  Governments  might  be  made  to  make  statements  before  parlia- 
ments and  before  the  world  by  choosing  publicly  between  war  and  peace. 

Mr.  Hells:  Will  the  secretary  general  be  the  judge  of  the  time  to  send  his 
letter  caUing  attention  to  arbitration? 


THIRTEENTH  MEETING,  JULY  3,  1899  763 

Baron  d'Estournelles :  He  will  be  kept  informed  by  the  representatives  of 
the  interested  countries,  who  will  know  when  to  advise  him  whether  the  time  is  or 
is  not  opportune. 

Mr.  Hells  wonders  whether  the  ill-timed  intervention  of  this  secretary  gen- 
eral might  not  aggravate  the  dispute.  Could  not  this  responsibility  be  given  to 
neutral  Powers,  rather  than  to  the  secretary  general  ? 

Mr.  Martens  does  not  hesitate  to  lend  his  sympathy  to  the  proposition  of  Mr. 
d'Estournelles,  but  the  difficulty  is  this :  a  permanent  secretary  by  addressing  the 
Powers  in  dispute  interferes,  so  to  speak,  and  we  know  that  Powers  do  not  de- 
sire to  have  any  one  interfere  in  their  afifairs.  Could  we  not  avoid  the  difficulty 
by  charging  the  secretary  to  write  to  this  or  that  neutral  Power  to  recall  the 
existence  of  a  permanent  Court?  The  question  of  knowing  whether  it  was  neces- 
sary to  intervene  would  then  be  left  to  the  judgment  of  this  neutral  Power. 

Mr.  Lammasch:  The  neutral  Powers  will  consider  this  interference  of  the 
secretary  general  as  an  importunity. 

Chevalier  Descamps  considers  the  procedure  suggested  by  Mr.  Martens 
as  of  little  practical  value. 

His  Excellency  Count  Nigra:  We  have  created  some  fifty  arbitrators  from 
all  countries.  Could  we  not  impose  upon  these  arbitrators  who  belong  to  the 
Powers  in  dispute  the  duty  of  calling  the  attention  of  their  respective  countries 
to  arbitration.  They  are  persons  of  importance  whose  advice  would  be  listened 
to.     The  secretary  general  is  in  fact  only  a  clerk  of  the  court. 

After  a  general  exchange  of  views,  Baron  d'Estournelles  desires  to  state 
that  the  committee  is  unanimously  agreed  upon  the  basis  of  his  proposition.  The 
matter  of  form  alone  is  objected  to. 

The  President  thanks  the  committee  for  the  services  which  it  has  just  ren- 
dered in  connection  with  the  proposals  of  the  French  delegation.  He  then  sum- 
marizes the  discussion.  The  personal  idea  of  Mr.  d'Estournelles  has  his  entire 
sympathy :  its  purpose  is  to  exercise  a  moral  influence  upon  the  interested  Powers 
by  creating  a  mechanism  which  automatically,  so  to  speak,  brings  them  face  to 
face  with  arbitration. 

The  difficulty  is  to  decide  whether  the  secretary  general  is  capable  of  assum- 
ing the  political  responsibility  which  it  would  impose  upon  him. 

Why  has  he  been  chosen?  It  is  because  he  represents  not  only  the  will  of 
this  or  that  Power,  but  a  collective  will,  and  because  he  is  really  qualified  to  per- 
sonify the  unanimity  of  the  Powers  of  which  he  is  the  authorized  agent,  and  to 
symbolize  the  duty  which  they  have  recognized  as  belonging  to  them. 

We  must  prove  that  the  act  of  The  Hague  will  be  executed  in  all  seriousness, 
that  is,  if  we  consider  it  a  duty  to  resort  to  arbitration,  then  the  detail  of  the 
mechanism  will  solve  itself. 

The  essential  thing  is  to  bring  about  a  general  spirit,  and  create  a  new  at- 
mosphere and  for  that  purpose  to  bring  clearly  into  relief  the  ideal  of  duty :  that 
being  accomplished  the  means  of  practical  application  will  be  easy  to  find.  But 
once  again,  what  we  must  safeguard  above  all  is  the  idea  that  the  Powers  con- 
sider it  a  common  duty  to  suggest  arbitration. 

In  order  to  consider  all  the  opinions  expressed  by  the  members  of  the  com- 
mittee, we  might  thus  formulate  the  proposition  which  is  to  be  submitted  to  it, 
and  it  seems  that  the  thought  of  Mr.  d'Estournelles  would  in  this  way  best  be 
satisfactorily  expressed. 


764  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

Baron  d'Estournelles  having  insisted  that  the  text  which  he  has  drawn  up  be 
put  to  vote,  the  committee  proceeds  to  vote. 

Aye:    Pauncefote,  Bourgeois,  Odier; 

Nay:    Descamps,  Zorn,  Lammasch,  Martens,  Nigra; 

Abstention:    Asser,  Holls. 

After  this  vote  upon  the  entire  text,  the  President  consults  the  committee 
as  to  the  first  part. 
[54]   His  Excellency  Count  Nigra  observes  that  if  we  accept  the  expression 
"  duty  "  we  expose  certain  Powers  to  the  danger  of  failing  to  fulfill  it. 

He  nevertheless  proposes  to  adopt  the  text  of  Mr.  d'Estournelles  conclud- 
ing with  the  words  "  that  the  Permanent  Court  is  open  to  them." 

The  first  part  of  the  proposal  of  Mr.  d'Estournelles  being  put  to  vote  is 
unanimously  adopted.  (Mr.  Holls  reserves  the  right  in  the  name  of  his  Govern- 
ment, to  return  to  the  question  or  to  make  a  declaration  similar  to  that  which  he 
presented  above,  page  761.) 

The  President  after  having  announced  this  unanimous  vote,  thanks  the  com- 
mittee for  having  decided  to  write  into  the  act  of  The  Hague  the  word  "  duty," 
and  he  emphasizes  the  moral  and  practical  effect  of  this  decision:  in  the  future 
States  will  not  consider  themselves  as  indifferent  to  each  other.  When  a  dis- 
pute threatens  to  bring  two  of  them  into  war,  they  will  not  be  passive  neutrals 
but  responsible  neighbors,  which  will  have  the  duty  of  safeguarding  the  general 
peace. 

Upon  the  motion  of  Count  Nigra  the  committee  thanks  Baron  d'Estour- 
nelles for  his  happy  suggestion. 

Continuing  the  discussion  of  the  second  part  of  the  d'Estournelles  proposal, 
the  committee  substitutes  for  the  text  submitted  to  it,  the  following  draft: 

Consequently  they  declare  that  the  fact  of  one  or  more  of  them  remind- 
ing the  litigant  parties  of  the  provisions  of  the  present  Convention,  and  the 
advice  given  to  them,  in  the  highest  interests  of  peace,  to  have  recourse  to  the 
Permanent  Court,  can  only  be  regarded  as  in  the  nature  of  good  offices. 

Dr.  Zorn  requests  permission  to  return  to  Article  3  of  Chapter  H : 
"  each  Power  shall  select  .  .  .  two  persons,  etc."  It  would  be  necessary  to  give 
each  one  power  to  designate  a  greater  number  of  persons,  up  to  four  for  example. 
We  would  not  make  any  difference  between  the  larger  and  the  smaller  Powers. 

But  this  figure  of  four  would  satisfy  all  requirements  because  there  may 
be  need  of  specialists  of  various  kinds,  economists,  jurists,  military  men,  diploma- 
tists, etc.     We  might  say  "  four  persons  at  the  most." 

Mr.  Holls  thinks  that  if  all  the  Powers  name  four  arbitrators  the  list  would 
be  too  large  and  the  office  will  lose  its  importance.  He  asks  to  be  allowed  to 
reserve  his  vote. 

After  a  general  discussion,  the  committee  decides  to  adopt  the  figure  four. 

Consequently,  paragraph  3  of  this  article  will  be  modified  by  writing:  "one 
or  more  members." 

Article  4  bis 

Chevalier  Descamps  asks  to  have  added  thereto :  "  with  the  consent  of  the 
litigant  parties." 

The  committee  adopts  this  suggestion. 


THIRTEENTH  MEETING,  JULY  3,  1899  765 

Article  5 
The  word  "  Power  "  will  be  used  instead  of  "  State." 

His  Excellency  Sir  Julian  Pauncefote  thinks  that  the  time  is  come  to  in- 
sert an  additional  article  authorizing  every  arbitral  tribunal  or  commission  of 
inquiry  to  use  the  offices  and  services  of  the  secretarial  staff,  so  as  to  employ  the 
Court  as  much  as  possible. 

Mr.  Martens  thinks  that  it  is  desirable  that  The  Hague  should  become  the 
center  of  international  arbitration,  and  that  we  should  contract  the  habit  of  taking 
the  path  to  the  Court.  He  consequently  supports  the  motion  of  his  Excellency 
Sir  Julian  Pauncefote,  which  seems  a  practical  one  to  him. 

The  following  draft  proposed  to  the  committee  by  Sir  Julian  Pauncefote 
is  adopted :  "  The  bureau  is  authorised  to  place  its  premises  and  staff  at  the 
disposal  of  the  signatory  Pozvers  for  the  use  of  any  special  board  of  arbitration." 

Mr.  Asser  then  proposes  the  communication  to  the  secretary  of  copies  of 
arbitral  awards  and  documents  concerning  arbitrations.  He  therefore  suggests 
the  following  text  which  is  adopted :  "  The  signatory  Powers  undertake  to  com- 
municate to  the  Bureau  a  copy  of  any  arbitral  agreement  arrived  at  between  them, 
and  of  all  awards  handed  down  by  other  tribunals  than  the  Permanent  Court." 

Finally,  the  committee  votes  in  favor  of  the  following  addition  proposed  by 
Mr.  Martens  :  "  The  signatory  Powers  undertake  to  communicate  to  the  Bureau 
the  laws,  regulations,  and  all  documents  showing  the  execution  of  the  awards 

given  by  the  Permanent  Court." 
[55]  The  following  additional  article  proposed  by  Mr.  Asser  is  not  adopted: 
"  The  members  of  the  Permanent  Court  may  attend  the  meetings  of  the 
Council  with  power  to  advise." 

Article  7 
Adopted. 

Article  8 

The  draft  of  Mr.  Descamps  is  adopted:  "The  members  of  the  Permanent 
Court  of  arbitration  during  the  performance  of  their  duties  enjoy  diplomatic 
privileges  and  immunities." 


Examination,  Upon  its  Second  Reading,  of  the  "  Plan  for  International 
Commissions  of  Inquiry'* 

The  committee  listens  to  the  second  reading  of  the  chapter  on  international 
commissions  of  inquiry  already  adopted  upon  its  first  reading. 

With  regard  to  mediation,  the  original  text  of  Article  2  is  retained  upon  mo- 
tion of  Sir  Julian  Pauncefote  :  "  as  far  as  circumstances  allow." 

Chevalier  Descamps:  The  treaties  of  guaranty  create  a  peculiar  situation 
with  regard  to  Belgium  in  connection  with  the  choice  of  mediators  and  arbi- 
trators for  disputes  which  may  put  into  question  its  territory,  its  independence, 
its  neutrality  and  the  other  provisions  of  the  treaty  of  1839.  This  point  must 
be  stated. 

Jonkheer  van  Karnebeek  refers  to  the  question  of  adhesions. 


766  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

Chevalier  Descamps  says  that  the  convention  must  not  be  closed.  It  should 
remain  open  to  all  the  world,  to  all  Powers. 

The  committee  decides  not  to  make  an  exception  in  the  case  of  acts  drawn 
up  by  it  and  to  adopt  the  formula  regarding  adhesion  adopted  for  all  the  conven- 
tions by  the  Conference  in  the  general  act. 

The  next  meeting  is  set  for  Tuesday,  July  4,  at  3 :30  o'clock. 

The  order  of  business  calls  for  the  discussion  of  Article  10. 

The  meeting  adjourns. 


FOURTEENTH    MEETING 

JULY  4,  1899  1 


Mr.  Leon  Bourgeois  presiding. 

Chevalier  Descamps  submits  to  the  committee  slight  modifications  to  Articles 
1,  2,  and  6  of  the  draft  of  Convention.^  In  Article  2  especially,  upon  motion 
of  Sir  Julian  Pauncefote,  and  as  has  already  been  decided  at  the  last  meeting, 
the  original  text  vi^ill  be  restored :  "  as  far  as  circumstances  allow/'  instead  of 
"  unless  exceptional  circumstances  are  opposed  thereto," 

The  minutes  of  the  last  meeting  are  read  and  approved. 

[56]  Examination,  upon  its  Second  Reading,  of  Article  10 

(Obligatory  Arbitration)  ^ 

The  order  of  business  calls  for  the  further  discussion  of  Article  10  relating 
to  the  enumeration  of  cases  of  obligatory  arbitration. 

Dr.  Zorn  proposes  the  suppression  of  Articles  9  and  10.  The  German  Gov- 
ernment is  not  in  a  position  to  accept  compulsory  arbitration.  It  admits  that 
all  existing  conventions  in  which  arbitration  is  provided  shall  of  course  continue 
in  force,  for  example,  the  universal  postal  conventions,  the  conventions  relative 
to  railway  transportations,  the  mutual  conventions,  etc. 

The  principle  of  compulsory  arbitration  shall  be  maintained  in  all  cases  when 
already  adopted  by  special  conventions.  But  Germany  can  go  no  further  and 
believes  she  has  already  done  much  by  accepting  the  list  of  arbitrators  and  the 
Permanent  Court. 

Dr.  Zorn  hopes  that  unanimity  which  has  so  happily  prevailed  heretofore 
in  the  decisions  of  the  committee  shall  not  come  to  an  end  and  that  the  great  con- 
cessions previously  made  by  him  will  be  taken  into  account.  He  therefore  sug- 
gests that  the  adopted  wording  be  such  as  to  afford  equal  preservation  to  the 
future  and  the  existing  conventions. 

Count  Nigra  again  declares  that  whatever  happens,  the  Italian  Government 
proposes  to  write  into  its  conventions  every  time  that  it  is  possible  the  principle  of 
obligatory  arbitration. 

A  general  discussion  takes  place  regarding  the  form  to  be  given  to  the 
reservations  and  motion  of  Dr.  Zorn. 

1  Hall  of  the  Truce.  Present :  His  Excellency  Mr.  Staal,  president  of  the  Confer' 
ence;  Jonkheer  van  Karnebeek,  vice  president  of  the  Conference;  their  Excellencies  Count 
Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the  Third  Commission;  Chevalier 
Descamps,  president  and  reporter;  Messrs.  Asser,  Baron  d'Estournelles  de  Constant, 
HoLLS.  Lammasch,  Martens,  Odier,  Zorn,  members  of  the  committee  of  examination. 

2  Annex  10. 

3  See  fourth  and  fifth  meetings. 

767 


768  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

Mr.  Martens  upon  consideration  of  the  observations  of  Dr.  Zorn  submits 
to  the  committee  a  new  draft  of  Articles  9,  10  and  11,  the  import  of  which  is 
as  follows: 

Article  9 

Each  State  remains  the  sole  judge  of  whether  this  or  that  case  should  be 
submitted  to  arbitration,  except  the  cases  enumerated  in  Article  10,  and  in 
regard  to  those  the  high  contracting  Parties  recognize  arbitration  and  bind 
themselves  to  practice  it,  either  by  virtue  of  a  special  convention  or  by  virtue 
of  the  present  act,  as  the  best  means  of  settling  disputed  cases  peacefully. 

Article  10 

Arbitration  is  recognized  by  the  contracting  Parties  as  the  best  means 
of  settling  disputed  cases  relating  to  .  .  .  (followed  by  the  four  cases  in 
which  the  German  Government  has  bound  itself  by  special  conventions  to 
resort  to  arbitration. 

(The  words  "obligatory  arbitration"  are  stricken  out.) 

(Thus  everything  in  Article  10  is  canceled  except  these  four  cases.) 

Article  11 

In  cases  of  disputes  not  provided  for  in  Article  10,  arbitration  is  recog- 
nized as  very  desirable  and  recommended  in  the  following  cases : 

(Here  follows  an  enumeration  similar  to  that  contained  in  the  former 
Article  10.) 

Dr.  Zorn  is  unable  to  agree  to  this  proposal  which  determines  in  fact 
cases  where  arbitration  is  obligatory. 

When  a  permanent  court  shall  be  established  and  in  operation,  the  opportune 
time  for  enumerating  cases  of  arbitration  which  will  be  obligatory  for  all  will 
come  after  individual  experiences.  But  to  hasten  this  evolution  too  greatly  would 
he  to  compromise  the  very  principle  of  arbitration,  toward  which  we  are  all  sym- 
pathetic.    He  therefore  maintains  his  proposal  to  strike  out  Articles  9  and  10. 

Chevalier  Descamps  states  that  the  system  proposed  by  Mr.  Martens 
distinguishes  between  cases  of  obligatory  arbitration,  cases  where  arbitration  is 
recommended  and  .  .  .  others.  But  how  shall  we  decide  upon  the  enumeration  ? 
Chevalier  Descamps  for  his  part  finds  it  too  restricted  and  would  propose,  for 
example,  that  mention  be  made  of  commercial  treaties.  He  thinks  that  we  can 
submit  to  the  committee  a  more  general  provision  which  would  replace  Articles 
9  and  10: 

Independently  of  general  and  special  treaties  expressly  stipulating  re- 
course to  arbitration  as  obligatory  on  the  signatory  Powers,  these  Powers 
reserve  to  themselves  the  right  of  concluding,  either  before  the  ratification 
of  the  present  act  or  later,  new  agreements,  general  or  special,  with  a  view 
to  extending  obligatory  arbitration  to  all  cases  which  they  may  consider  it 
possible  to  submit  to  it.^ 

Jonkheer  van  Karnebeek  objects  to  the  text  of  Chevalier  Descamps  as  too 
general. 

Chevalier  Descamps  replies  that  he  only  points  out  a  compromise  formula 
under  the  force  of  necessity. 

Mr.  Martens  will  submit  to  the  decision  of  the  committee,  but  he  proposed 
his  draft  with  a  view  to  save  something.     In  reality,  he  is  bound  by  the  facts 

1  See  end  of  the  minutes. 


FOURTEENTH  MEETING,  JULY  4,  1899  769 

themselves :  on  one  hand,  Germany  does  not  wish  to  accept  the  principle  of  obliga- 
tory arbitration  in  a  general  act ;  on  tue  ottier  hand,  this  Power  has  already  con- 
cluded special  treaties  providing  tor  this  obligatory  arbitration.  His  draft  had 
for  its  purpose  to  facilitate  the  adhesion  of  Germany  by  not  asking  that  country 

to  make  any  new  sacrifice. 
[57]   Nevertheless,  in  order  to  meet  the  demands  of  Dr.  Zorn  he  will  go  so 
far  as  to  accept  the  omission  of  Article  10. 

Jonkheer  van  Karnebeek  expresses  regret  that  the  principle  of  obligatory 
arbitration  for  certain  kinds  of  litigation  is  not  to  be  written  into  the  convention. 

His  Excellency  Sir  Julian  Pauncefote  shares  this  regret  but  he  believes  that 
we  must  make  concessions  in  view  of  the  categorical  instructions  of  the  German 
delegate,  and  in  order  not  to  lose  the  valuable  assistance  of  unanimity  which  has 
thus  far  existed. 

The  President  asks  permission  to  make  a  few  remarks;  the  majority  of 
the  members  of  the  committee  had  voted  in  favor  of  the  enumeration  of  cases 
of  obligatory  arbitration.  He  thinks  it  necessary  that  the  expression  of  this 
view  should  not  be  passed  over  in  silence. 

The  opinion  of  each  one  of  us  upon  the  fundamental  principle  should  first  be 
recalled  and  clearly  expressed  by  a  vote;  because  public  opinion  will  regret  that 
the  obligatory  idea,  restricted  to  certain  cases,  covered  by  conventions  already 
existing,  was  not  written  into  the  General  Act. 

Every  one  must  be  thoroughly  informed  that  we  have  not  changed  our  view- 
point, but  that  we  have  given  up  the  attempt  to  make  this  view  prevail  because 
we  desire  to  attain  the  higher  end  of  unanimity.  In  order  to  show  clearly  this 
attitude,  the  President  asks  that  a  vote  be  taken  upon  the  principle  of  Article  10, 
subject  to  its  immediate  omission  in  order  to  obtain  general  agreement. 

His  Excellency  Count  Nigra  regrets  that  he  cannot  agree  with  Mr.  Bour- 
geois. Our  votes  have  already  been  given  upon  the  first  reading.  Why  repeat 
them?  By  emphasizing  our  disagreement  we  would  throw  into  too  great  relief 
the  changes  of  opinion  which  have  taken  place. 

Finally,  the  cases  of  obligatory  arbitration  contained  in  Article  10  are  in 
his  view  so  worthless  that  they  are  not  worth  talking  about,  and  as  far  as  he  is 
concerned  he  would  have  rejected  the  enumeration  as  insufficient.  In  order  to 
obtain  so  poor  a  result  it  is  not  necessary  to  imperil  the  auspicious  unanimity 
which  constitutes  our  strength  before  the  Third  Commission. 

Dr.  Zorn  thanks  his  Excellency  Count  Nigra.  He  too  is  strongly  in  favor 
of  unanimity,  but  if  it  is  impossible  to  preserve  it  he  must  withdraw  from  it  in 
view  of  his  instructions. 

Mr.  Asset  says  that  there  are  two  distinct  things :  personal  vote  which  we 
have  already  shown,  and  compromise  vote  which  we  are  about  to  consider. 

The  full  Commission  has  the  right  to  know  the  stages  through  which  we  have 
passed.  That  done,  as  Mr.  Bourgeois  has  pointed  out,  we  shall  join  in  a  given 
solution  for  obtaining  unanimity. 

That  cannot  embarrass  the  German  Government ;  it  is  on  the  contrary  an  act 
of  courtesy  to  it. 

The  President  thinks  it  would  be  useful  to  set  forth  clearly  the  conclusions 
to  which  this  discussion  has  led.  Met  by  the  inflexible  instructions  of  Dr.  Zorn 
on  the  one  hand,  and  by  the  necessity  of  unanimity  on  the  other,  he  is  ready  to 
make  all  possible  concessions,  but  it  is  not  his  duty  to  alter  facts.  Now  these 
facts  are  as  follows:     1.  A  considerable  majority  has  already  declared  itself  in 


770  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

favor  of  the  enumeration  contained  in  Article  10;  2.  To-day  we  are  considering 
the  second  reading  of  Article  10,  and  all  the  members  of  the  committee  have  the 
right  to  show  their  opinions.  If  these  opinions  are  not  changed  it  is  natural 
that  they  should  indicate  it.  The  President  asks  permission  to  declare  that, 
so  far  as  he  is  concerned,  if  the  French  delegation  has  allied  itself  with  the  opin- 
ion of  the  new  majority  it  is  solely  as  a  matter  of  compromise  and  not  because 
it  has  changed  its  opinion.  This  declaration  in  no  way  implies  that  one  side  or 
the  other  should  count  upon  laying  their  divergence  of  opinion  before  the  Commis- 
sion :  the  best  guaranty  against  this  peril  is  the  spirit  in  which  we  are  working ; 
the  perfect  harmony  which  animates  us,  the  existence  of  which  has  been  proved 
in  so  many  ways,  leaves  no  fear  upon  this  point. 

Chevalier  Descamps  says  doubtless  all  the  members  of  the  committee  must 
consider  their  instructions,  but  they  must  also  thank  Dr.  Zorn  for  the  concessions 
which  he  has  made  to  them. 

His  Excellency  Sir  Julian  Pauncefote  says  that  the  German  Government 
is  perhaps  not  the  only  one  opposed  to  Article  10. 

Are  not  Austria  and  Italy  of  the  same  opinion? 

His  Excellency  Count  Nigra  replies  that  he  would  wish,  as  does  Mr.  Bour- 
geois, that  the  enumeration  of  Article  10  were  more  extensive,  and  for  that 
reason  he  will  not  vote  for  it. 

Mr.  Hells  regrets  that  he  does  not  agree  with  the  President.  He  does  not 
think  it  would  be  useful  to  vote  again  upon  Article  10.  We  examined  it  upon 
the  first  reading,  that  was  sufficient  to  establish  opinions. 

The  American  Government  has  approved  his  vote  expressly,  that  is,  it  finds 

that  the  contents  of  this  article  are  in  reality  of  so  little  importance  that  its 

[58]   retention  cannot  be  allowed  to  weigh  the  balance  against  the  inconvenience 

of  a  dissent  between  the  great  Powers  represented  in  the  committee.     Under 

these  conditions,  we  should  not  hesitate  to  sacrifice  Article  10  to  obtain  unanimity. 

The  President  accepts  this  view-point,  provided,  however,  that  the  opinions 
of  each  one  be  stated  in  the  minutes. 

His  Excellency  Count  Nigra  agrees  with  this  solution. 

Jonkheer  van  Karnebeek  insists  upon  the  necessity  of  not  giving  a  false  im- 
pression.    Why  enter  into  the  details  of  an  enumeration? 

The  real  question  is  the  principle  of  obligation. 

Germany  cannot  accept  it;  it  is  sufficient  that  her  refusal  be  stated  in  the 
minutes  and  in  the  report,  and  that  it  be  added  that  in  the  committee  there  was 
unanimous  opinion  in  favor  of  Article  10  at  the  time  of  the  first  reading  (except 
in  the  case  of  Dr.  Zorn,  who  reserved  his  vote).  Then  it  would  not  be  neces- 
sary to  redraft  the  article :  it  would  be  sufficient  to  state  the  concession. 

Dr.  Zorn  recognizes  that  it  is  the  right  of  each  member  of  the  committee 
to  vote  upon  the  second  reading  and  to  give  the  reasons  for  his  vote.  So  far  as 
he  is  concerned  it  will  be  satisfactory  if  the  reporter  explains  that  many  members 
of  the  committee,  although  in  favor  of  the  principle  of  obligatory  arbitration,  have 
abandoned  their  idea  in  order  to  reach  an  agreement. 

Mr.  Odier  declares  that  if  the  article  were  submitted  to  a  vote  upon  the 
second  reading,  he  would  ask  for  the  omission  of  Article  11  and  certain  modi- 
fications of  Chapter  II.  With  these  reservations  he  is  favorable  to  the  principle 
and  would  vote  for  the  retention  of  the  article. 

Sir  Julian  Pauncefote  would  have  also  voted  for  the  retention  of  Article  10 


FOURTEENTH  MEETING,  JULY  4.  1899  771 

subject  to  the  reservation  of  certain  modifications  which  he  has  already  asked  for 
upon  the  question  of  pecuniary  claims. 

Mr.  Martens :  The  idea  which  made  us  decide  to  insert  cases  of  obligatory 
arbitration  in  our  plan  is  that  it  is  necessary  to  assist  the  practice  of  arbitration, 
and  in  order  to  do  that,  to  provide  for  certain  possibilities,  even  of  little  impor- 
tance, wherein  Powers  would  agree  to  resort  to  arbitration  necessarily.  But  since 
it  is  a  question  of  preserving  unanimity,  Mr.  Martens  consents  to  the  withdrawal 
of  Articles  10  and  11  purely  and  simply. 

Mr.  Lammasch  agrees  with  the  views  expressed  by  his  Excellency  Count 
Nigra  and  Mr.  Holls.  As  to  whether  it  is  necessary  to  vote  upon  Article  10 
upon  a  second  reading  or  simply  to  mention  the  declarations  upon  this  subject  in 
the  report  and  minutes,  he  considers  the  latter  process  preferable.  The  latter 
will  be  sufficient  in  fact  to  protect  our  responsibility  which  has,  however,  already 
been  cleared  by  our  vote  upon  the  first  reading. 

The  President  summarizes  the  discussion  by  saying  that  the  vote  which  the 
committee  is  about  to  express  will  be  taken  under  the  conditions  set  forth  above. 
Consequently,  he  puts  to  vote  the  compromise  text  of  Chevalier  Descamps,  a 
text  accepted  by  Dr.  Zorn,  and  beginning  with  these  words :  "  Independently  of 
general  or  private  treaties,  etc."  ^ 

This  text,  put  to  vote,  is  adopted  replacing  former  Articles  8  to  12,  and 
will  become  Article  5.  Only  six  articles  will  remain  in  Chapter  IV,  "  Interna- 
tional arbitration."  Article  6  will  be  the  former  Article  13 :  "  With  a  view  to 
developing  the  practice  of  arbitration,  etc." 

The  committee  before  closing  its  work  has  only  to  decide  upon  the  title  to  be 
given  to  the  entire  set  of  provisions  worked  out  by  it  for  the  purpose  of  facilitat- 
ing the  peaceful  settlement  of  international  disputes. 

After  having  discussed  the  following  titles  "  International  code  of  peace  " 
(Mr.  Descamps),  "Pacific  settlement  of  international  disputes"  (Mr.  Asser), 
the  committee  adopts  the  following  expression :  "  Convention  for  the  pacific 
settlement  of  international  disputes." 

Jonkheer  van  Karnebeek  returns  to  the  clause  regarding  accession  and  in- 
sists upon  the  necessity  of  settling  this  question. 

Mr.  Martens  explains  the  formula  which  was  suggested  for  the  General  Act ; 
according  to  this  formula  the  protocol  will  remain  open  until  January  1  of  the 
coming  year.  All  adhesions  will  be  notified  to  the  Royal  Government  of  the 
Netherlands  which  will  give  notice  thereof  to  the  interested  parties  after  having 
made  a  note  thereof.  This  duty  is  what  the  Federal  Government  now  performs 
in  the  case  of  certain  conventions. 

It  is  preferable,  Mr.  Martens  adds,  to  leave  the  question  open  so  that  the 
drafting  committee  may  adopt  a  general  formula  applicable  to  all  the  conventions 
which  result  from  the  labors  of  the  Conference. 

Adopted. 

The  President  does  not  want  to  let  the  committee  close  its  work  without 
expressing  his  thanks  and  congratulations  for  the  activity  and  spirit  of  concilia- 
tion which  have  made  his  task  so  much  easier,  and  assured  its  final  success. 

On  the  motion  of  his  Excellency  Count  Nigra,  the  committee  expresses 
[59]  its  thanks  to  the  President  for  the  services  which  he  has  rendered  in  ac- 
cepting the  duty  of  directing  their  labors.     Unanimous  votes  of  thanks 

1  See  the  text  inserted  above,  p.  768. 


772  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

are   also   given   to   Chevalier   Descamps,    reporter    for   the   committee,    Baron 
d'Estournelles  de  Constant  who  took  charge  of  the  minutes,  and  Mr.  Jarousse 
DE  SiLLAc,  assistant  secretary. 
The  meeting  adjourns.^ 

^  After  this  last  meeting  it  was  decided  that  the  "  Draft  Convention  for  the  pacific  set- 
tlement of  international  disputes"  should  be  printed  and  distributed  in  proof,  to  the  members 
of  the  Third  Commission  in  order  to  permit  them  to  study  it  at  their  leisure,  to  consult 
their  Governments,  and  to  formulate,  as  far  as  possible,  their  observations  before  the  com- 
mittee before  the  meeting  of  the  Third  Commission.  In  order  to  hear  these  observations, 
and  to  take  any  measures  pursuant  thereto,  the  committee  will  hold,  if  necessary,  one  or 
several  special  meetings  (see  meetings  15,  16,  17  and  18). 


FIFTEENTH    MEETING 

{First  Special  Meeting) 
JULY   15,   1899 1 


Chevalier  Descamps  presiding. 

The  President  reminds  the  committee  that  the  "Draft  Convention  for  the 
pacific  settlement  of  international  disputes  "  ^  was  submitted  in  the  form  of  proof 
to  all  the  members  of  the  Third  Commission  and  that  the  latter  were  invited  to 
communicate  their  views  to  Baron  d'Estournelles  de  Constant.  Memoranda 
or  amendments  have  in  this  way  been  presented  by  Baron  Bildt,  Messrs. 
d'Ornellas  Vasconcellos,  Rolin  and  Stancioff.  The  President  has  in- 
spected these  texts  and  will  communicate  the  substance  thereof  as  the  reading 
progresses  when  the  article  covered  thereby  is  presented.  He  expresses  his  sin- 
cere thanks  to  Mr.  Renault  who  has  kindly  volunteered  his  assistance  in  draft- 
ing certain  texts. 


Examination,  Upon  the  Third  Reading,  of  the  Draft  "  Convention  for  the 
Pacific  Settlement  of  International  Disputes  "  ^ 

The  President  proceeds  to  read  the  Articles  of  the  "  Draft  Convention  " 
to  which  modifications  are  requested,  and  amendments  by  various  members  of 
the  Third  Commission. 

Article  1 

An  exchange  of  views  takes  place  between  Messrs.  Chevalier  Descamps, 
Martens,  Lammasch,  Asser  and  Count  Nigra  regarding  the  draft  of  Article  1, 
(third  line).  In  place  of  the  expression  "to  bring  about  by  peaceful  means  the 
settlement  of  international  differences/'  it  is  agreed  to  substitute,  "with  a  view 

to  the  peaceful  settlement  of  international  differences." 
[60]   Mr.  Renault  suggests  the  substitution  of  the  word  "  never  "  for  the  words 
"  not  at  all  "  (third  line  of  Article  6). 
Adopted. 

Articles  7  and  8 

The  President  communicates  the  amendment  proposed  by  Mr.  d'Ornellas 

1  Hall  of  the  Truce.  Present :  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; Jonkheer  van  Karnebeek,  vice  president  of  the  Conference;  his  Excellency  Count 
Nigra,  honorary  president  of  the  Third  Commission;  Messrs.  Asser,  Baron  d'Estournelles 
DE  Constant,  Holls,  Lammasch,  Martens,  Odier,  Dr.  Zorn,  members  of  the  committee 
of  examination.  Present  at  the  meeting:  Messrs.  Baron  Bildt,  Sir  Henry  Howard,  Re- 
nault, Rolin. 

2  Annex  10. 

3  See  annex  10. 

773 


774  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

Vasconcellos  concerning  Articles  7  and  8:  the  delegate  from  Portugal  thinks 
that  the  general  principle  of  Article  7  should  also  imply  special  mediation.  He 
suggests  the  inversion  of  the  order  of  Articles  7  and  8,  the  present  Article  7  then 
to  commence  with  these  words :  '^'  Mediation,  even  special,  cannot  have  the 
effect,  etc." 

The  committee  decides  that  Article  7  concerning  the  effect  of  mediation  is 
applicable  to  the  special  mediation  of  Article  8  and  that  this  interpretation  indi- 
cated by  Mr.  d'Ornellas  shall  be  mentioned  in  the  minutes. 

Article  9 

With  regard  to  Article  9  (International  commissions  of  inquiry)  Mr.  d'Ornel- 
las Vasconcellos  proposes  to  write  "  circumstances  of  fact "  instead  of  "  local 
circumstances."  He  also  believes  that  since  verification  of  facts  can  never  offend 
the  honor  or  vital  interests  of  States,  there  is  reason  for  the  omission  of  the 
words :  "  and  furthermore  not  involving  the  honor  or  vital  interests  of  the  in- 
terested parties." 

Mr.  Asset  supports  the  first  remark  of  Mr.  d'Ornellas.  He  had  already 
pointed  out  ^  that  the  words  "  local  circumstances  "  were  too  restricted.  To  set- 
tle a  dispute  between  two  countries  it  may  be  useful  to  examine  impartially  cir- 
cumstances other  than  local  circumstances:  commissions  of  inquiry  should  not 
be  limited  in  their  work  of  investigation  and  satisfaction  by  such  form.  He 
furthermore  proposes  to  omit  the  words  "  on  the  spot."  There  are  certain  facts 
which  cannot  be  cleared  up  on  the  spot:  for  example,  some  fact  which  might 
have  occurred  on  the  high  seas. 

Mr.  Lammasch  requests  the  retention  of  the  words  "  zvhich  may  he  verified 
by  local  examination."  Without  this  precaution,  commissions  of  inquiry  would 
have  an  unlimited  field  of  action  and  it  is  necessary  to  define  their  jurisdiction 
exactly. 

Baron  Bildt  remarks  that  the  text  of  the  draft  Convention  has  already  been 
submitted  to  the  Governments  and  it  should  be  changed  as  little  as  possible  in 
order  that  it  may  not  be  necessary  to  ask  for  new  instructions  without  grave 
necessity  therefor. 

The  committee  adopts  the  first  proposition  of  Mr.  d'Ornellas  and  that 
of  Mr.  AssER. 

As  to  the  second  proposition  of  Mr.  d'Ornellas  (omission  of  the  words 
"honor  and  vital  interests").  Baron  d'Estournelles  thinks  it  is  inopportune  to 
omit  these  words.  Several  delegates  have  already  made  known  to  him  objec- 
tions which  they  intend  to  draw  up  against  Article  9  because  they  do  not  find 
sufficient  guaranties  therein.  It  was  with  a  view  to  meet  these  ideas  that  Mr. 
Stancioff  had  proposed  to  add  a  third  guaranty  providing  "  if  the  Powers  find 
it  advantageous  " ;  in  any  case  even  if  we  do  not  increase  the  number  of  guaran- 
ties, we  must  not  diminish  them. 

The  committee  shares  this  view,  and  Mr.  d'Ornellas  does  not  insist  upon 
this  point. 

Articles  16  and  17 

Baron  Bildt  proposes  to  omit  both  Articles  16  and  17.  Article  16  appears 
to  be  superfluous,  even  injurious.  Why  insert  a  right  which  all  the  world  al- 
ready possesses,  and  why  sanction  things  which  are  evident? 

1  See  ante,  p.  727. 


FIFTEENTH  MEETING,  JULY  15,  1899  775 

As  for  Article  17,  it  sets  forth  a  great  axiom.  In  any  case,  it  should  be 
affirmed  only  incidentally.     This  is  done  in  Article  30. 

Chevalier  Descamps  defends  these  articles.  Article  16  reproduces  Article 
3  of  the  original  code  of  arbitration  and  this  article  did  not  seem  useless  to  the 
committee.  We  must  remember  in  fact  that  binding  agreements  duly  entered  into 
are  not  the  only  ones  which  should  be  pointed  out.  It  is  well  to  recall  the  different 
kinds  of  arbitral  conventions.  These  conventions  differ  in  kind  accordingly  as 
they  involve  existing  disputes  or  future  controversies,  a  certain  category  of  suits 
or  all  possible  suits.     It  is  not  vain  to  recall  these  differences. 

His  Excellency  Count  Nigra  endorses  these  remarks.  It  is  well  to  be  able 
to  make  arbitral  conventions  in  theory,  so  to  speak,  even  when  we  foresee  that 
they  will  have  few  chances  of  application.  It  is  well  to  have  clear  ideas  as 
to  their  scope. 

Mr.  Lammasch  says  that  Articles  16  and  17  state  truths  which  it  is  worth 
while  to  emphasize.     Would  it  not  raise  doubts  as  to  the  opinion  of  the  com- 
mittee concerning  them  if  we  should  omit  reference  to  them? 
[61]   Besides,  our  work  has  to  point  out  with  as  much  exactness  as  possible  the 
way  in  which  we  hope  that  the  law  will  develop. 

Baron  Bildt  proposes  the  omission  at  least  of  the  words  "  in  good  faith  " 
in  Article  17.  We  should  not  presuppose  bad  faith  on  the  part  of  Governments. 
In  ordinary  treaties  we  never  mention  such  a  thing.     Why  do  it  here? 

Mr,  Martens  replies  that  the  words  "  good  faith  "  are  here  equivalent  to  the 
Latin  expression  bona  fide.  It  is  a  technical  term  adopted  in  all  ages  in  private 
contracts  as  well  as  in  international  contracts. 

His  Excellency  Count  Nigra  observes  that  the  Roman  law  always  employs 
this  formula. 

Article  20 

Dr.  Zorn  expresses  his  views  regarding  Article  20  in  the  following  terms: 
After  making  concessions  which  it  believes  are  very  important  and  which  it 
could  make  only  by  overcoming  grave  and  serious  objections,  the  German 
Government  has  no  intention  of  changing  its  point  of  view  with  regard  to  the 
plan  for  arbitration.  However,  it  seems  to  that  Government  that  the  terminology 
of  the  draft  does  not  clearly  and  precisely  express  the  ideas  upon  which  the 
committee  reached  an  agreement,  and  to  which  the  German  Government 
consented. 

The  word  "  Court  "  is  applied : 

1.  To  the  whole  institution  of  permanent  arbitration. 

2.  To  the  assembly  of  arbitrators  formed  under  the  authority  of  this  insti- 
tution, except  that  such  assembly  is  designated  as  a  "  tribunal "  if  it  is  formed 
under  the  terms  of  a  special  convention. 

This  might  bring  about  a  certain  confusion.  In  a  special  case  we  may 
give  to  an  assembly  of  arbitrators  the  name  of  court  or  tribunal,  but  the  en- 
tire institution  should  never  be  called  either  a  court  or  a  tribunal  because  it  has 
no  function  of  arbitration  procedure  to  perform.  Outside  of  the  Bureau  which 
has  not  and  should  not  have  any  other  powers  than  those  belonging  to  a  secretarial 
staff,  there  exists  only  a  list,  the  members  of  which  do  not  exercise  their  duties 
except  after  having  been  selected  for  a  particular  case.  The  name  of  court  or 
tribunal  given  to  the  entire  collection  of  these  members  would  not  therefore  be 
justified.     In  order  not  to  give   rise  to   deception   and   misunderstandings   we 


776  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

should  consequently  modify  the  terminolog>'  of  the  draft  and  specially  eliminate 
the  words  "  Court  of  Arbitration  "  so  far  as  the  entire  institution  is  concerned. 

Chevalier  Descamps  replies  to  Dr.  Zorn,  saying  that  he  would  be  very 
sorry,  looking  at  the  moral  effect  of  the  matter,  to  renounce  this  title  "  Permanent 
Court "  already  adopted  and  perfectly  justifiable  in  certain  respects.  In  order  to 
avoid  misunderstanding  we  might  call  the  particular  organization  which  is  on  the 
point  of  rendering  justice  the  arbitral  court. 

Mr.  Hells  does  not  sufficiently  understand  all  of  the  shades  of  speech  in  the 
French  language  to  defend  the  word  "  court,"  but  he  can  assert  that  the  English 
word  "  court "  corresponds  exactly  to  what  the  committee  of  examination  has 
just  established.  The  Supreme  Court  of  New  York  comprises  a  certain  num- 
ber of  judges  who  have  never  been  called  together  at  one  time.  These  judges 
are  elected  in  different  districts  and  divided  among  these  districts  by  the  "  Appeal 
Division  " —  a  special  tribunal  named  by  the  Governor.  Naturally  each  of  these 
judges  must  continue  the  performance  of  his  duties  during  an  entire  year  —  if 
the  legal  work  is  of  sufficient  importance  —  but  there  is  no  fundamental  regula- 
tion which  forces  the  Appeal  Division  necessarily  to  designate  a  judge.  The 
Court  possesses  a  general  seal  and  an  individual  secretary  in  each  county.  Several 
characteristics  of  European  courts  which  do  not  appear  in  our  projected  court 
of  arbitration  are  also  lacking  in  the  Supreme  Court  of  New  York,  but  an 
American  would  scarcely  understand  the  objections  which  might  be  made  to  the 
word  "  court "  as  the  designation  of  such  an  organization. 

Mr.  Asser  recalls  the  fact  that  he  had  at  first  adopted  the  title  "  Permanent 
Tribunal  of  Arbitration,"  and  that  we  substituted  therein  the  word  "  Court " 
as  the  result  of  remarks  made  on  behalf  of  the  German  Government.  While 
not  thinking  that  the  terminology  is  perfect  he  proposes  that  it  be  retained  in 
default  of  a  better,  and  to  keep  the  word  Court  to  designate  the  entire  institution, 
and  the  word  Tribunal,  the  meeting  of  arbitrators  chosen  from  the  list  and  ready 
to  decide  a  case. 

Mr.  d'Estournelles  endorses  the  opinion  of  Mr.  Asser. 

Mr.  Lammasch  thinks  that  the  German  objection  arises  especially  from  the 
fact  that  we  employ  the  same  expression  to  designate  two  different  things,  that 
is,  the  entire  court  and  the  different  divisions  of  this  court.  He  thinks  that  we 
might  write  Tribunal  in  place  of  Court  in  Article  14  and  make  the  opposite  change 
in  Article  28. 

Dr.  Zorn  replies  to  Mr.  Descamps  that  it  is  preferable  to  avoid  false 
terms ;  we  should  not  permit  ourselves  to  be  charmed  by  a  word  which  does  not 
accord  with  the  truth.  The  creation  of  a  permanent  international  institution  for 
arbitration  loses  nothing  of  its  great  value  if  we  give  it  a  name  which  is  more 
modest  and  in  any  case  more  correct.  As  to  the  objections  made  that  we 
[62]  could  not  find  a  designation  which  would  be  entirely  correct,  it  must  be  said 
in  reply  that  this  would  not  be  difficult ;  we  might  say  for  example  "  the 
permanent  organization  for  arbitration  "  or  "  the  permanent  list  of  arbitrators." 

The  observations  of  Mr.  Holes  regarding  the  Supreme  Court  of  the  State  of 
New  York  whose  members  do  not  meet  together,  and  have  no  permanent  func- 
tions, were  of  great  interest  to  him. 

But,  there  is  a  _great  difference  between  a  national  institution  based  upon 
internal  legislation,  and  an  international  institution  created  by  a  convention  be- 
tween several  States. 

The  "  Supreme  Court  of  the  State  of  New  York  "  although  it  does  not  meet 


FIFTEENTH  MEETING,  JULY  15,  1899  777 

is,  however,  a  unit,  an  authority ;  the  so-called  "  Permanent  Court  of  Arbitration  " 
does  not  have  this  character;  it  furnishes  only  the  elements  from  which,  when 
the  time  arrives,  several  may  be  called  to  form  an  arbitral  tribunal.  In  any  case, 
Dr.  ZoRN  requests  that  these  objections  by  the  German  Government  be  set  forth 
in  the  minutes  in  order  to  reserve  to  his  Government  the  power  to  apply  the 
terminology  which  may  seem  most  correct  to  it  when  making  the  German  transla- 
tion of  the  text  of  the  Convention. 

Mr.  Martens  calls  attention  to  the  fact  that  the  words  Permanent  Court  and 
Arbitral  Tribunal  conform  to  the  practice  followed  in  France,  England  and  the 
United  States. 

Article  23 

Regarding  Article  23  Mr.  Asset  asks  whether  we  could  not  point  out  that 
the  appointment  of  the  judges  may  always  be  revoked,  even  before  the  expiration 
•of  the  term  of  six  years. 

Chevalier  Descamps  replies  that  it  is  dangerous  to  point  out  this  right. 
And  it  is  better  not  to  insist  upon  it.  If  there  is  a  serious  and  obvious  case  for 
the  exercise  of  revocation  we  shall  know  how  to  consider  it.  We  should  not  in 
this  provision  threaten  the  principle  of  continuous  tenure. 

Article  24 
Mr.  Rolin  proposes  an  amendment  which  has  a  three-fold  object:  1.  to  make 

clear  that  the  arbitrators  who  are  intended  to  form  a  tribunal  in  actual  opera- 
tion, can  only  be  selected  from  the  general  list ;  2.  to  point  out  the  transition  from 
the  idea  of  "  permanent  court "  to  that  of  "  arbitration  tribunal "  and  thus  avoid 
ambiguity ;  3.  to  prevent  notification  being  given  to  the  Bureau  before  all  of  the 
arbitrators  have  been  selected. 

After  an  exchange  of  views  and  as  a  result  thereof,  the  committee  adopts 
the  following  draft,  subject  to  future  examination  should  there  be  any  reason 
therefor: 

The  signatory  Powers  which  wish  to  have  recourse  to  the  Court  for  the 
settlement  of  a  difference  that  has  arisen  between  them,  choose  from  the  general 
list  of  members  of  the  Court  the  arbitrators  to  be  named. 

In  default  of  an  agreement  to  the  contrary  the  arbitrators  are  named  in 
■accordance  with  the  rules  fixed  by  Article  31  of  the  present  Convention. 

The  Parties  notify  to  the  Bureau  their  determination  to  have  recourse  to  the 
Court  and  the  names  of  the  arbitrators. 

The  tribunal  of  arbitration  assembles  on  the  date  fixed  by  the  Parties. 

Article  25 

Baron  Bildt  requests  that  this  article  be  omitted.  There  is,  it  is  true,  a 
■certain  conflict  between  this  article  and  Article  35.  The  latter  provides  that  as 
a  general  rule  the  meeting  place  of  the  tribunal  is  designated  by  the  parties  and 
that  as  an  exception  it  will  meet  at  The  Hague.  He  proposes  not  to  speak  of 
the  meeting  place  of  the  tribunal  except  in  Article  35  and  consequently  to  omit 
Article  25. 

Mr.  Asset  replies  that  the  situations  contemplated  by  these  two  articles  are 
entirely  different:  in  Article  25  we  are  talking  of  the  Permanent  Court,  while  in 
Article  35  it  is  a  question  of  a  special  arbitration.  In  the  latter  case  the  rule  is 
naturally  that  the  meeting  place  should  be  selected  by  the  parties.     On  the  con- 


778  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

trary  in  case  of  the  Permanent  Court  and  in  Article  25  it  is  very  natural  that 
The  Hague  should  be  the  ordinary  meeting  place  of  the  arbitral  tribunal. 

The  committee  decides  to  make  the  following  simple  modification  to  Article 
25 :     "  The  tribunal  of  arbitration  "  in  place  of  "  The  Court." 

Article  27 

With  regard  to  the  draft  of  this  article,  Mr.  Rolin  observes  that  if  we 
recognize  a  new  duty  of  nations,  we  cannot  presuppose  that  one  or  more 
[63]  of  them  will  fail  to  perform  it.  That,  however,  is  just  what  would  occur 
if  we  retained  the  present  text  of  paragraph  2  of  Article  27.  He  there- 
fore proposes  to  omit  the  words  "  by  one  or  more  of  them." 

Adopted. 

Mr.  Standoff  asks  whether  it  would  not  be  necessary  to  provide  in  advance 
a  practical  means  for  reminding  Powers  that  a  permanent  court  exists.  He 
is  heartily  in  accord  with  those  who  wish  to  impose  this  new  duty  upon  Govern- 
ments. He  believes  with  them  that  Article  27  happily  expresses  the  sense  of  the 
entire  work,  that  is,  that  a  new  era  is  beginning  wherein  the  idea  of  the  inter- 
responsibility  of  nations  will  become  clearer  and  clearer.  But  in  order  to 
hasten  this  development,  he  thinks  it  would  be  necessary  to  indicate  a  practical 
method,  a  mechanical  arrangement,  which  would  permit  States  to  fulfill  their  duty 
with  security  and  rapidity. 

H  we  do  not  wish  to  entangle  diplomacy  with  this  question,  what  plan  should 
we  follow?  If  we  employ  the  Bureau,  the  procedure  to  be  followed  might 
perhaps  be  too  long  —  the  countries  which  desired  to  call  the  attention  of  the 
disputing  parties  to  the  existence  of  a  court  of  arbitration  must  first  address 
the  Bureau.  The  latter  must  deliberate  over  the  matter  and  then  confer  with 
the  two  litigants.  That  will  require  time  and  the  conflict  might  break  out  be- 
fore the  reminder  had  been  transmitted.  Therefore  we  must  find  a  more  effec- 
tive and  more  rapid  means  to  enable  States  to  fulfill  the  duty  proclaimed  in 
Article  27. 

The  committee  thanks  Mr.  Stancioff  for  his  observations,  the  subject  of 
which  has  already  been  discussed.^ 

Article  28 

Baron  Bildt  observes  that  if  the  Permanent  Council  is  composed  of  the 
diplomatic  representatives  of  the  signatory  Powers  residing  at  The  Hague,  as 
provided  in  Article  28,  certain  Powers  will  not  be  represented  in  this  Council,  for 
example,  Sweden  and  Norway  the  representative  of  which  accredited  to  The 
Hague  resides  in  Brussels.  He  therefore  asks  that  the  word  "  accredited  "  be 
substituted  for  the  word  "  residing." 

Mr.  d'Estournelles  opposes  this  proposal. 

The  President  puts  it  to  vote. 

The  vote  is : 

Ayes:  His  Excellency  Count  Nigra,  His  Excellency  Mr.  Staal,  Chevalier 
Descamps,  Mr.  Asser,  Mr.  Holls. 

Nays:  Mr.  Lammasch,  Dr.  Zorn,  Sir  Henry  Howard,  Baron  d'Estour- 
nelles. 

Consequently  the  substitution  proposed  by  Baron  Bildt  is  adopted.     It  is 

1  See  minutes  of  the  thirteenth  meeting. 


FIFTEENTH  MEETING,  JULY  15,  1899  779 

also  agreed  that  the  diplomatists  should  select  a  domicile  at  The  Hague  where 
all  communications  —  especially  notices  of  meetings  —  should  be  addressed  to 
them.     This  observation  should  be  mentioned  in  the  minutes. 

The  committee  decides  that  the  president  reporter  shall  examine  Articles  29 
to  56,  in  the  presence  of  the  interested  parties  who  have  proposed  amendments 
thereto  and  that  he  shall  submit  the  proposed  modifications  to  the  Third  Com- 
mission, the  plenary  session  of  which  will  occur  next  Monday,  July  17,  .at  10 
o'clock. 

The  meeting  adjourns. 


[64] 


SIXTEENTH   MEETING 

(Second  Special  Meeting) 
JULY   18,   1899  1 


Mr.  Leon  Bourgeois  presiding. 

The  President  reminds  the  committee  that  it  has  to  examine  the  questions 
raised  yesterday  in  the  Third  Commission  in  order  to  decide  upon  the  compromise 
proposals  for  to-morrow. 

General  Discussion  Concerning  "  International  Commissions  of  Inquiry "  ^ 

Jonkheer  van  Karnebeek  makes  reservations:  he  declares  that  he  has  not 
yet  received  instructions  from  his  Government  regarding  inquiries,  but  that  these 
instructions  cannot  be  favorable. 

Mr.  Rolin  would  agree  to  vote  for  the  chapter  regarding  inquiries,  but  he 
considers  these  commissions  as  a  preparatory  measure  to  arbitration.  He  asks 
that  this  declaration  be  noted  in  the  minutes. 

Mr.  Martens  replies  that  these  commissions  of  inquiry  are  not  necessarily 
a  prelude  to  arbitration.  We  should  note  that  the  procedure  is  voluntary,  and 
consequently  there  is  no  disadvantage  in  the  interpretation  given  by  the  delegate 
from  Siam. 

Mr.  Odier  makes  the  same  reservations  as  Mr.  van  Karnebeek  so  far  as 
final  instructions  from  his  Government  are  concerned. 

Mr.  HoUs  is  of  the  opinion  that  it  would  be  better  to  be  content  with 
recommending  commissions  of  inquiry ;  that  would  be  simpler. 

His  Excellency  Count  Nigra:  Would  it  not  be  better  to  make  a  separate 
convention  ? 

Mr.  Lammasch  recalls  that  he  has  already  asked  that  we  limit  ourselves  to 
recommending  commissions  of  inquiry. 

He  has  given  consideration  to  the  arguments  of  Mr.  Martens,  but  since 
then  the  principle  of  obligation  seems  to  have  met  with  serious  obstacles.  A 
discussion  in  the  commission  is  to  be  feared.  They  will  ask  for  the  omission  of 
Article  9  entirely,  and  thus  imperil  the  whole  institution.    Would  it  not  be 

iHall  of  the  Truce.  Present:  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; Mr.  Jonkheer  van  Karnebeek,  vice  president  of  the  Conference;  their  Excellencies 
Count  Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the  Third  Commission;  Cheva- 
lier Descamps,  president  and  reporter;  Messrs.  Asser,  Baron  d'Estournelles  de  Constant, 
HoLLS,  Lammasch,  Martens,  Odier,  Dr.  Zorn,  members  of  the  committee  of  examination 
Present  at  the  meeting :     Messrs.  Baron  Bildt,  Count  de  Macedo,  Renault,  Rolin. 

2  See  eighth  and  thirteenth  meetings. 

780 


SIXTEENTH  MEETING,  JULY  18,  1899  781 

better  to  make  the  sacrifice  and  omit  the  word  obligation  in  the  only  article  in 
the  Convention  where  it  still  exists? 

Mr.  Martens  objects  that  this  is  not  the  only  article  which  provides  for  an 
obligation.     Articles  1,  21  and  others  imply  also  a  binding  agreement. 

However,  if  there  is  no  possibility  of  having  the  text  as  it  exists  adopted, 
then  he  will  accept  the  sacrifice  and  renounce  the  obligation.  Up  to  the  present 
time  he  has  simply  heard  fears  expressed,  but  nothing  more. 

So  that  perhaps  there  is  only  a  misunderstanding. 

These  words,  "  if  circumstances  allow  "  furnish  every  guaranty. 

Mr.  Hells  states  that  his  Government  has  approved  Article  9  as  it  is,  and 
that  he  can  sign  it,  but  he  desires  that  in  the  report  it  be  explained  that  a  com- 
mission of  inquiry  is  not  a  form  of  arbitration.  There  is  nothing  in  its  opera- 
tions which  might  be  called  "  judicial."  The  parties  are  not  represented  by 
lawyers  and  members  of  the  commission  are  not  judges  but  simply  investi- 
gators. 
[65]  Jonkheer  van  Karnebeek  says  these  inquiries  may  be  dangerous  and 
embarrassing  under  certain  circumstances,  notably  in  the  case  of  colonies. 

In  replying  to  a  question  by  the  President,  Chevalier  Descamps  says  that 
the  words  "  vital  interests  and  national  honor "  are  no  longer  found  in  Article 
9  after  having  appeared  originally  in  several  parts  of  the  Convention.  This 
phrase  is  therefore  "  evidence  of  a  former  state  "  as  the  geologists  say. 

Chevalier  Descamps  adds  that  in  case  of  facts  which  have  been  wrongly 
interpreted  there  is  ground  for  ascertaining  their  materiality.  This  is  what  com- 
missions of  inquiry  are  for.  They  do  not  consider  the  matter  in  dispute.  They 
elucidate  points  of  fact.  Now  if  we  are  seeking  a  weaker  phraseology  it  would 
not  seem  difficult  to  find  it. 

Mr.  d'Estournelles  says  that  he  has  received  statements  of  the  impressions 
of  every  one  during  the  interval  of  ten  days  which  has  elapsed  before  to-day's  ses- 
sion, and,  whether  rightly  or  wrongly,  commissions  of  inquiry  are  raising  lively 
opposition.     It  is  a  question  of  fact. 

Delegates  who  are  apprehensive  of  inquiries  in  the  case  of  their  countries 
in  reality  produce  not  arguments  but  fears,  and  it  is  that  which  prevents  us  from 
convincing  them.  Their  fears  are  both  moral  and  material.  They  fear  first  that 
the  amour  propre  of  their  country  will  be  oflFended ;  commissions  of  inquiry  will 
reveal  defects  of  administration,  and  humiliation  for  them  will  follow,  and  they 
fear  it.  Furthermore  they  fear  that  following  these  rerelations  pressure  of 
public  opinion  will  be  brought  to  bear  upon  them  (the  delegates).  There  is 
therefore  a  sort  of  international  coalition  formed  among  States  which  are  more 
or  less  badly  administered ;  it  is  again  a  battle  of  darkness  against  light,  but  that 
is  why  we  shall  experience  difficulty  in  defeating  the  opposition  to  us;  we  must 
reach  our  decision  and  make  concessions  to  attain  our  purpose. 

Mr.  Martens:  I  conceive  that  the  States  to  which  Mr.  d'Estournelles 
has  alluded  fear  that  their  defects  of  administration  may  be  revealed,  but  they 
cannot  delude  themselves  and  we  must  know  that  whatever  we  write  into  our 
act  these  inquiries  will  always  take  place. 

Mr.  d'Estournelles:     They  do  not  desire  to  have  them  become  customary. 

Mr.  Odier:  Here  is  still  an  objection.  They  fear  that  this  first  act  will 
be  the  forerunner  of  a  series  of  acts  which  will  bind  the  signatories  to  a  greater 
or  lesser  extent. 

They  fear  that  obligatory  international  commissions  of  inquiry  will  be  taken 


782  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

as  a  pretext,  so  that  the  Power  which  is  right  on  the  facts  may  morally  compel 
the  Power  which  is  wrong,  especially  if  the  latter  is  weak,  to  resort  to  arbitration, 
which  will  by  that  very  fact  be  made  obligatory. 

Mr.  Lammasch  made  his  proposal  with  a  view  to  avoiding  troublesome 
debates  to-morrow  and  to  try  to  obtain  unanimity  to-day. 

Article  1  contains  the  word  "  agree  "  and  Article  20  contains  the  word  "  un- 
dertake": in  any  manner  the  undertaking  is  limited  and  the  undertaking  of 
Article  9  seems  more  strict  and  to  have  a  special  character. 

Dr.  Zorn  has  no  objection  to  Article  9,  because  he  believes  that  the  text 
of  this  article  does  not  imply  the  principle  of  obligatory  arbitration ;  but  if  there 
is  any  danger  of  provoking  a  troublesome  debate  upon  the  subject  during  the 
rest  of  our  deliberations,  he  aligns  himself  with  the  conciliatory  opinion  of  Mr. 
Lammasch,  and  proposes  with  him  to  admit  that  commissions  of  inquiry  are 
purely  voluntary. 

Mr.  Martens,  he  hopes,  will  join  this  compromise  movement. 

It  must  be  recognized  that  international  commissions  of  inquiry  have  very 
different  degrees  of  importance  depending  upon  whether  a  large  or  a  small  Power 
is  involved.  For  a  small  Power  they  may  be  dangerous  when  they  are  not  so 
for  a  large  Power. 

Mr.  Asser  points  out  a  new  objection  to  commissions  of  inquiry.  Certain 
delegates  of  countries  which  are  well  administered  fear  them  too  for  entirely 
different  reasons.  Mr.  Odier  said  that  an  international  commission  of  inquiry 
would  lead  to  arbitration.  Now  I  have  heard  the  contrary  stated,  that  it  would 
prevent  arbitration. 

If  the  result  of  the  inquiry  is  not  favorable  to  a  great  Power  in  conflict  with 
a  small  Power  then  the  great  Power  will  not  desire  arbitration. 

Under  these  conditions,  as  any  one  may  see,  it  will  have  to  make  a  sacrifice. 

Certain  Powers  will  be  willing  to  sign  only  a  part  of  the  Convention,  others 
will  sign  under  reservations  —  this  result  will  not  be  satisfactory.  It  will  be  bet- 
ter to  resign  ourselves  to  declaring  that  it  is  voluntary. 

The  President  summarizes  the  discussion :  the  personal  sentiments  of  the 
members  of  the  committee  have  not  changed,  but  we  foresee  the  opposition  of 
several  Powers  in  the  Commission  and  we  desire  above  all  that  the  entire  draft 
shall  not  be  compromised.  That  being  clearly  stated,  nothing  prevents  each 
one  of  us,  however,  from  being  allowed  to  set  forth  an  opinion  in  the 
[66]  meeting  to-morrow ;  that  will  be  a  good  time  to  test  it  out  and  we  shall  not 
give  way  until  the  last  moment  after  having  produced  an  interchange  of 
ideas  which  will  not  be  in  vain  and  which  will  in  any  case  instruct  public  opinion 
upon  the  motives  of  both  sides ;  let  us  therefore  await  the  discussion  and  reserve 
to  ourselves  the  decision  to  support  the  amendment  of  Mr.  Lammasch  if  it  is 
necessary. 

Mr.  Martens  adopts  the  ideas  expressed  by  the  President.  He  will  be 
happy  to  be  supported  in  this  battle  and  at  the  desired  time,  he  says,  we  will 
unite  upon  the  idea  of  compromise,  while  remaining  convinced  that  the  cause  is 
good. 

Mr.  Lammasch  also  supports  this  view.  He  proposed  his  amendment  to-day 
only  to  prevent  a  discussion  which  might  have  become  troublesome.  But  since 
the  committee  is  so  unanimous  in  its  feeling  and  so  resolute  as  to  the  plan  to  be 
followed,  he  rather  hopes  that  the  discussion  will  take  place. 


SIXTEENTH  MEETING,  JULY  18,  1899  783 

The  committee  unanimously  accepts  the  method  of  procedure  suggested  by 
the  President. 

Examination,  Upon  Its  Third  Reading,  of  the  "  Draft  of  Convention  for  the 
Pacific  Settlement  of  International  Disputes  "   (Continued)  ^ 

The  President  reads  the  articles  to  which  amendments  have  been  presented : 

Article  21 
DE  Macedo  amendment : 

Notwithstanding  and  in  case  of  an  agreement  upon  the  simple  fact  of 
recourse  to  arbitration,  the  signatory  Powers  have  agreed  to  prefer  the  juris- 
diction of  the  Permanent  Court  to  any  other  special  jurisdiction  whenever 
circumstances  will  permit. 

Count  de  Macedo  declares  that  his  intention  is  to  give  more  force  and  vigor 
to  this  new  institution  of  arbitration,  to  make  the  use  of  the  Permanent  Court 
the  rule  and  special  courts  the  exception. 

Mr.  Renault:  Article  21  already  sets  forth  this  idea  that  resort  to  the 
Permanent  Court  is  the  rule  and  resort  to  a  special  court,  the  exception. 

Count  de  Macedo  prefers  that  this' idea  be  more  specifically  set  forth  and  that 
it  be  well  understood  that  resort  to  a  special  court  is  really  an  exception.  It 
will  almost  be  necessary  to  state  reasons  for  following  the  exception,  or  at 
least  the  necessity  of  stating  such  reasons  may  gradually  become  customary. 

Count  Nigra  is  not  of  the  same  opinion  as  Count  de  Macedo,  The  rule  is 
the  bilateral  convention  of  arbitration,  and  the  Permanent  Court  is  the  exception, 
the  special  mode  of  arbitration.  Furthermore  Article  21  which  states  to  the 
contrary  seems  to  him  to  be  badly  drawn  up. 

Dr.  Zorn  has  no  objection  to  the  amendment  of  Count  de  Macedo,  but  it 
seems  to  him  superfluous.  He  agrees  with  Mr.  Renault  in  thinking  that  the 
Permanent  Court  is  the  rule,  the  conventional  rule  —  according  to  Article  21 
—  and  special  arbitration  the  exception.  The  word  "  unless "  constitutes  the 
exception.  He  hopes,  as  does  Count  de  Macedo,  that  the  use  of  the  Permanent 
Court  will  be  the  rule,  but  he  thinks  that  his  amendment  is  not  necessary. 

Count  de  Macedo:  The  Permanent  Court  is  the  rule  Dr.  Zorn  says,  the 
exception  is  permitted.  He  desires  that  this  exception  be  less  frequent  by  morally 
requiring  a  sort  of  statement  of  the  reason  therefor. 

Mr.  Rolls  appreciates  very  much  the  idea  of  Count  de  Macedo,  but  he  thinks 
it  would  perhaps  be  embarrassing  to  emphasize  this  idea  that  resort  should  be 
had  to  the  Permanent  Court.  That  might  perhaps  allow  opinion  to  exercise  pres- 
sure upon  Governments. 

Mr.  Asser  believes  that  the  objection  of  Mr.  Renault  is  well  founded. 
Count  de  Macedo  proposes  that  in  all  cases  where  resort  is  had  to  arbitration  re- 
course shall  be  had  to  the  Permanent  Court  except  under  certain  circumstances. 
It  would  therefore  be  necessary  to  say:  Tlie  contracting  Powers  recommend 
that  reference  be  had  to  the  Permanent  Court  in  every  case  where  circumstances 
permit. 

Count  de  Macedo  supports  this  text. 

1  See  annex  10. 


784  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

Chevalier  Descamps  says  that  what  is  most  significant  to  him  in  Article  21 
is  the  fact  that  it  definitely  requires  that  the  Permanent  Court  shall  be  considered 
the  rule. 

Count  DE  Macedo's  amendment  for  its  part  provides  but  one  thing:  prefer 
the  rule  to  the  exception.  Chevalier  Descamps  thinks  that  the  amendment 
[67]  might  be  interpreted  by  certain  States  as  a  kind  of  pressure  exercised 
in  favor  of  the  Permanent  Court.  If  the  amendment  were  necessary  we 
might  consider  means  for  introducing  it,  but  Article  21  is  quite  sufficient  to  set 
forth  the  same  idea  without  insisting  thereon  more  than  is  proper,  and  run- 
ning the  risk  of  causing  irritation  thereby. 

Mr.  Rolin  says  that  it  seems  to  him  that  the  purpose  the  Third  Commission 
has  in  view  is  to  favor  resort  to  arbitration.  The  Permanent  Court  is  only  a 
means.  Any  amendment  which  would  favor  the  jurisdiction  of  the  Permanent 
Court  at  the  risk  of  restricting  the  very  use  of  arbitration  is  dangerous.  We 
would  be  morally  obliged,  says  Count  de  Macedo,  to  have  recourse  to  the  Court. 

That  might  embarrass  States  and  prevent  them  finally  from  using  arbitra- 
tion. 

The  President  puts  to  vote  the  Asser  text :  "  the  signatory  Powers  are 
agreed  to  have  recourse,  etc." 

The  following  voted  against  it:  Messrs.  Odier,  Descamps,  Zorn,  Lam- 
MASCH  and  Holls. 

The  amendment  is  not  adopted,  but  Mr.  Martens  thinks  that  in  the  minutes 
and  the  report  we  might  make  note  of  the  idea  of  Count  de  Macedo  with  which 
he  sympathizes.  Count  Nigra,  Mr.  Holls  and  Count  de  Macedo  accept  this 
point  of  view. 

The  President:  Mention  thereof  shall  be  made  in  the  minutes. 

Article  22 

Mr.  Renault  says  with  reference  to  the  fourth  paragraph  the  words :  "  ren- 
dered with  regard  to  them  "  are  meaningless.  He  proposed :  "  any  azvard  con- 
cerning them,  delivered  by  means  of  a  special  tribunal." 

Adopted. 

Dr.  Zorn :  The  words  "  secretary  general "  were  stricken  out  upon  the 
Eyschen  motion,  but  the  German  Government  desires  that  the  secretarial  staff 
shall  remain  secretarial.  It  is  of  little  importance  what  name  is  given  to  the 
head  thereof,  but  the  German  Government  is  anxious  that  the  secretariat  shall 
not  become  a  center  of  international  politics,  a  sort  of  cosmopolitan   Bureau. 

Article  23 

Count  de  Macedo  requested  that  the  number  4  be  reduced  to  2. 

He  wishes  to  see  the  Permanent  Court  respected  and  deferred  to.  The 
members  should  not  be,  so  to  speak,  merely  honorary  appointees  chosen  at 
haphazard. 

Jonkheer  van  Karnebeek  does  not  agree  with  this  opinion.  Since  the  for- 
tunate addition  of  Article  27,  I  have  been,  he  says,  in  favor  of  the  number  4 
in  order  that  in  addition  to  lawyers  there  may  be  put  in  diplomatists  and  men 
able  to  decide  political  questions. 

Mr.  Martens  recalls  the  history  of  this  article :  Sir  Julian  Pauncefote 
had  proposed  the  number  2.     Upon  the  motion  of  Dr.  Zorn  we  adopted  the 


SIXTEENTH  MEETING,  JULY  18,  1899  785 

number  4.  His  opinion  has  remained  the  same.  A  small  number  would  be 
worth  more  because  the  moral  authority  of  each  would  be  greater.  If  the  Gov- 
ernments can  choose  only  two  members,  they  will  give  greater  attention  to  their 
selection.  Among  4  persons  we  may  find  some  who  may  not  be  equal  to  their 
duties. 

Everybody  will  name  4  and  especially  all  Powers  which  perhaps  should  only 
name  1. 

There  will  be  a  large  number  of  persons  recommended,  but  perhaps  few 
who  can  be  recommended. 

The  fewer  the  number  of  arbitrators  designated  the  more  authority  they  will 
have,  and  the  more  responsibiHty  Governments  will  have  for  their  selection. 

On  the  other  hand,  Mr.  Martens  cannot  join  in  the  remarks  made  by 
Jonkheer  van  Karnebeek  that  the  Bureau  or  the  Court  shall  have  political 
functions.  Neither  the  Court  nor  the  Council  nor  the  Bureau  have  anything 
to  do  with  politics. 

It  has  also  been  said  there  must  be  technical,  military,  legal  and  engineer 
arbitrators,  but  all  the  specialists  may  be  summoned  as  experts  before  an 
arbitral  tribunal. 

Dr.  Zorn:  The  authority  of  the  Court  will  not  be  lessened  if  the  num- 
ber of  judges  is  greater,  perhaps  there  will  be  one  hundred  names.  This  is  not 
too  many  for  the  Permanent  Court  speaking  for  the  entire  world.  The  opinion 
of  the  German  Government  is  that  there  must  be  above  all  things  lawyers  on 
this  list,  but  it  is  also  necessary  to  have  diplomatists  and  perhaps  technical  arbi- 
trators. He  thinks  too  that  if  Article  27  has  added  no  political  attribute  to  the 
Court,  it  nevertheless  gives  it  an  importance  which  may  extend  beyond  the  field 
of  the  lawyer. 

Mr.  Asset  is  of  the  same  opinion  as  Messrs.  Martens  and  Descamps,  but 
he  thinks  that  we  cannot  go  back  upon  what  has  already  been  decided. 
[68]   Count  de  Macedo  is  ready  not  to  insist  upon  his  amendment  whenever  there 
is  a  complete  disagreement  upon  this  point,  and  if  Dr.  Zorn  thinks  that 
there  is  an  irrevocable  objection  on  the  part  of  the  German  Government. 

Chevalier  Descamps:  If  Count  de  Macedo  does  not  insist  we  may  limit  our- 
selves to  a  statement  in  the  report  that  this  amendment  meets  with  the  support 
of  all  opinions  except  one  and  that  we  give  way  only  because  of  necessity. 

Adopted. 

The  President  calls  attention  to  the  amendment  of  Count  de  Grelle  Rogier 
regarding  diplomatic  immunities  of  arbitrators.^ 

Jonkheer  van  Karnebeek:  It  is  not  admissible  that  Netherland  subjects 
should  enjoy  diplomatic  immunities  in  the  Netherlands.  They  would  escape  from 
all  jurisdiction,  and  he  proposes  to  add  these  words  after  the  word  "  enjoy  " : 
"  So  far  as  they  do  not  belong  to  the  country  in  which  the  tribunal  is  sitting/' 

Mr.  Renault:  The  question  arose  in  France  in  1876;  a  Frenchman  repre- 
sented a  foreign  country  in  Paris.  He  was  prosecuted,  the  Court  of  Paris  de- 
cided that  this  Frenchman  enjoyed  diplomatic  immunity  in  France  —  from  the 
time  that  he  was  accredited. 

Mr.  Asset  —  in  spite  of  the  respect  which  he  has  for  the  opinion  of  Mr. 
Renault  and  of  the  Court  of  Paris  —  thinks  that  exterritoriality  is,  as  to  a  per- 
son, a  right  which  belongs  to  this  person  to  be  considered  when  living  abroad 

1  See  Third  Commission,  fifth  meeting,  July  17. 


786  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

as  being  in  his  own  country ;  therefore  a  Netherlander  named  as  arbitrator  would 
not  escape  from  the  control  of  his  country. 

Chevalier  Descamps  thinks  that  Mr.  Asser  is  relying  too  much  upon  a 
rule  of  secondary  importance :  exterritoriality.  This  is  a  formula  which  was  in- 
vented to  make  tangible  the  privilege  of  inviolability.  Do  you  admit  that  a 
Netherland  judge  may  search  the  residence  of  an  international  arbitrator?  The 
question  is  a  delicate  one.  As  for  other  immunities,  such  as  those  concerning 
taxation  and  duties,  the  point  of  view  may  be  different. 

His  Excellency  Count  Nigra  thinks  that  it  will  be  necessary  to  restrict  the 
immunities  of  judges  to  personal  inviolability. 

Mr.  Martens:  This  discussion  shows  that  we  are  not  in  agreement  our- 
selves. We  must  therefore  state  that  a  subject  may  not  have  diplomatic  im- 
munity in  his  own  country.  In  1868  an  American  was  named  ambassador  from 
China  at  Washington  with  the  restriction  that  he  should  not  have  diplomatic 
immunities  within  the  territory  of  the  United  States.  It  is  an  absolute  prin- 
ciple that  a  person  is  not  exterritorial  in  his  own  country.  But  to  be  exact 
we  might  say  "  except  in  his  country." 

Adopted. 

Article  24 

RoLiN  amendment: 

In  default  of  a  provision  to  the  contrary  these  arbitrators  are  designated 
in  accordance  with  the  rules  fixed  by  Article  31  of  the  present  Convention. 
They  notify  to  the  Bureau  their  determination,  .  .  .  designated.^ 

Mr.  Rolin  sets  forth  the  reasons  for  his  amendment;  he  explains  that  the 
parties  should  notify  to  the  Bureau  the  complete  list  of  the  tribunal,  arbitrators 
and  umpires. 

1.  The  first  draft  would  in  fact  permit  notification  of  the  formation  of  the 
tribunal  before  it  should  be  entirely  made  up. 

2.  Mr.  Rolin  desired  to  point  out  the  origin  of  the  arbitral  tribunal,  the 
character  of  which  is  not  yet  known  when  it  is  mentioned  in  Article  24. 

The  remainder  is  a  matter  of  mere  phraseology. 

Jonkheer  van  Karnebeek  asks  whether  the  committee  desires  that  the  Bureau 
should  have  no  part  in  the  constitution  of  the  tribunal. 

Unanimous  response:    None. 

Jonkheer  van  Karnebeek  remarks  that  then  it  will  be  necessary  to  change 
the  wording  of  Article  24. 

Chevalier  Descamps  opposes  the  amendment  of  Mr.  Rolin  and  his  text 
thus  drawn  up :  "  arbitrators  destined  to  form  the  arbitral  tribunal."  He  is  not 
sure  that  they  alone  will  constitute  it. 

Mr.  Holls:  We  must  clear  up  this  question  of  notification  of  the  choice 
of  umpire.  It  is  very  important  to  adopt  a  text  on  that  point  which  will  per- 
mit the  rejection  of  the  proposition  providing  for  challenging  the  umpire  (Bildt 
proposal). 

The  very  basis  of  our  institution  is  the  idea  that  the  tribunal  shall  give 
complete  satisfaction  to  the  two  parties.  We  must  therefore  in  fact  reserve  to 
the  litigants  the  right,  the  possibility  of  challenging  one  of  the  arbitrators.  If 
we  decide  that  notification  shall  be  made  before  this  choice  is  agreed  upon,  then 
we  shall  open  the  door  to  the  request  of  Mr.  Bildt. 

1  See  below. 


SIXTEENTH  MEETING,  JULY  18,  1899  787 

Arbitrators  have  a  double  role.     They  are   (1)   arbitrators;   (2)   electors. 
They  should  fulfill  these  two  roles  and  there  must  be  a  sanction  for  their 

doing  so. 
[69]   Chevalier  Descamps:     Let  us  place  paragraph  3  in  place  of  paragraph  2. 

After  the  tribunal  has  been  formed,  then  will  come  the  notification. 
Mr.  Rolin  insists  upon  his  amendment  thus  modified: 

The  arbitrators  intended  to  constitute  the  arbitral  tribunal  for  the  settle- 
ment of  a  difference  that  has  arisen  between  the  signatory  Powers  which 
wish  to  have  recourse  to  the  Court,  are  chosen  from  the  general  list  of  the 
arbitrators  of  the  Court. 

The  committee  of  examination  agrees  upon  this  point:  a  general  tribunal 
of  arbitration  is  composed  solely  of  arbitrators  chosen  from  the  list. 

The  President:  Chevalier  Descamps  is  authorized  to  find  a  text  from  which 
he  may  take  the  last  three  paragraphs  of  Article  31  and  incorporate  them  herein. 

Article  26 
Renault  amendment: 

A  non-signatory  Power  cannot  resort  to  the  jurisdiction  of  the  Court 
without  having  concluded  a  preliminary  arbitration  agreement  between  it  and 
the  adverse  Power. 

Mr.  Asser  supports  this  formula  and  proposes  this  phraseology: 

The  international  Court  may  be  called  upon  to  pass  upon  a  dispute 
between  non-signatory  Powers  or  between  a  signatory  Power  and  a  non- 
signatory  Power  if  the  two  parties  have  agreed  to  have  recourse  to  it. 

Mr.  Renault  proposes  to  draw  up  paragraph  2  of  Article  26  as  follows : 

The  Permanent  Court  may  be  called  upon,  under  the  conditions  prescribed 
by  the  present  Convention,  to  pass  upon  a  controversy  existing  even  between 
non-signatory  Powers  or  between  a  signatory  Power  and  a  non-signatory 
Power  if  the  parties  have  agreed  to  have  recourse  to  this  Court. 

Finally,  after  a  discussion  bearing  upon  the  question  of  phraseology  the 
following  form  is  agreed  upon : 

The  jurisdiction  of  the  Court  may  be  extended,  under  the  conditions  pre- 
scribed by  the  present  Convention,  to  disputes  existing  between  two  signatory 
Powers  or  between  a  signatory  Power  and  a  non-signatory  Power,  if  the 
parties  have  agreed  to  have  recourse  to  this  Court. 

Article  27 

Mr.  Martens  informs  the  committee  that  certain  delegates  have  asked  him 
to  substitute  the  words  "  recognize  it  as  useful "  for  these  "  consider  it  their 
duty." 

Article  28 

Jonkheer  van  Karnebeek :  It  seemed  to  the  Netherland  Government  that  six 
Powers  was  too  small  a  number,  10  would  be  preferable  as  a  minimum. 

The  number  9  proposed  by  His  Excellency  Count  Nigra  is  adopted,  it  being 
the  number  adopted  by  the  American  draft. 

Mr.  Martens:     We  have  formed  a  Permanent  Court  and  an  epitome  of  the 


788  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

court  which  is  the  bureau.     In  saying  Court  we  embrace  all  the  organs  belonging 
to  our  institution:  bureau,  court,  publication  (bulletin  of  the  Permanent  Court). 

Dr.  Zorn:  The  Permanent  Court  does  not  exist;  there  is  only  a  bureau 
in  reality. 

Article  31 

BiLDT  amendment:  States  that  the  choice  of  umpire  should  be  submitted 
to  the  approval  of  the  parties. 

Chevalier  Descamps :  The  Powers  have  sufficient  communications  with  the 
arbitrators  which  they  name. 

There  is  no  practical  inconvenience.  Approval  is  not  in  keeping  with  the 
moral  dignity  of  the  arbitrators ;  they  may  be  challenged  too  for  various  reasons 
foreign  to  the  actual  dispute. 

Article  51 

The  tribunal  is  authorized  to  fix  the  period  within  which  the  arbitral  award 
must  be  executed. 

Doctor  Zorn  has  no  instructions  upon  this  point,  but  he  doubts  the  acceptance 
of  this  amendment  by  his  Government;  he  therefore  reserves  his  vote  upon  the 
subject. 

His  Excellency  Count  Nigra  withdraws  his  proposition  in  order  not  to 
arouse  a  new  debate. 

[70]  Article  54 

Mr.  Asset  thinks  that  paragraph  12  should  be  modified :  "  and  only  be- 
cause of."  It  should  be  "  may  only  be  made  on  the  ground  of  the  discovery 
etc." 

We  provided  yesterday  that  the  parties  should  themselves  agree  upon  the 
period.  I  think  we  were  wrong.  We  must  provide  a  complete  procedure  since 
they  may  take  it  or  leave  it. 

The  committee  adheres  to  the  Holls  amendment  which  is  drawn  up  as 
follows:  "The  compromis  determines  (see  the  text)." 

Article  56 

Mr.  Holls:  Who  will  bear  the  expenses?  The  American  delegation  re- 
quests that  this  subject  be  cleared  up.  It  proposes  that  the  division  of  expenses 
be  fixed  in  the  compromis.  In  any  case  it  will  be  necessary  to  have  an  author- 
ity to  fix  the  expenses. 

The  President:     The  tribunal  itself  will  fix  the  division  of  the  expenses. 

There  are  two  questions:  Dr.  Zorn  desires  that  the  word  honoraria  be  not 
used,  as  it  would  not  be  compatible  with  the  dignity  of  the  arbitrators. 

On  the  other  hand  there  are  two  classes  of  expenses. 

The  general  expenses  (heating,  lighting,  etc.)  :  it  is  the  duty  of  the  admin- 
istrative council  to  guarantee  the  payment  of  these.  Then  the  special  expenses 
in  the  case  (lawyers,  arbitrators) :  the  payment  of  these  will  be  made  directly  by 
the  parties. 

Chevalier  Descamps :  Article  19  has  become  Article  29 ;  that  will  lead  to  a 
change  in  the  numbering  of  all  the  articles. 

That  will  be  regrettable  if  we  wish  to  keep  the  previous  work  clear.  It  will 
be  better  to  find  another  combination. 


SIXTEENTH  MEETING,  JULY  18,  1899  789 

Mr.  Descamps  is  authorized  to  propose  it. 

It  is  decided  to  use  the  expressions  titles  and  chapters  instead  of  paragraphs. 

The  committee  approves  certain  modifications  and  chang^es  of  phraseology 
suggested  by  Chevalier  Descamps,  especially  in  Article  1  {with  a  view  instead  of 
with  the  purpose). 

The  meeting  adjourns. 


SEVENTEENTH   MEETING 

(Third  Special  Meeting) 
JULY   19,   1899  1 


Mr.  Leon  Bourgeois  presiding. 

Examination  of  Articles  9  to  13  Relating  to  "  International  Commissions 

of  Inquiry  "  =^ 

The  President  recalls  that  the  Third  Commission  at  its  meeting  of  this 
morning  authorized  its  committee  to  hear  and  discuss  the  remarks,  objec- 
[71]  tions  and  amendments  presented  by  a  certain  number  of  delegates  with  re- 
gard to  commissions  of  inquiry  (see  Section  3  of  the  Draft  Convention). 
Consequently,  he  first  presents  for  discussion  the  amendment  of  his  Excellency 
Mr.  Eyschen  to  Article  10.     This  amendment  is  as  follows : 

In  default  of  special  provisions,  the  procedure  of  inquiry  should  be  deter- 
mined by  the  principles  contained  in  the  rules  written  in  Article  29  bis  et  seq. 
relating  to  arbitral  procedure,  so  far  as  these  principles  are  applicable  to  the 
institution  of  international  commissions  of  inquiry. 

Dr.  Zorn  is  not  inclined  to  accept  this  amendment  in  the  form  in  which  it  is 
presented.  Commissions  of  inquiry  should  remain  distinct  from  arbitration. 
We  cannot  therefore  submit  them  to  the  general  rules  of  procedure  established 
in  our  draft.  We  must  leave  to  the  commissions  themselves  the  duty  of  de- 
termining the  procedure  which  they  will  follow  or  at  most  limit  ourselves  to 
mere  outlines. 

Mr.  Martens  shares  the  view  of  Dr.  Zorn.  He  repeats  that  the  purpose 
of  commissions  of  inquiry  is  neither  to  provoke  an  arbitration  nor  to  prevent  one. 
They  have  a  perfectly  distinct  existence  and  their  purposes  may  be  summed  up 
as  follows:  to  state,  by  a  common  agreement  between  the  parties,  the  material 
causes  of  the  dispute.  As  to  conclusions  with  regard  to  the  procedure  to  be 
followed  all  that  depends  upon  the  parties.  They  may  take  advantage  of  the 
inquiry  in  order  to  have  recourse  to  arbitration,  or,  on  the  contrary,  they  may 

1  House  in  the  Woods.  Present :  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; Jonkheer  van  Karnebeek,  vice  president  of  the  Conference;  their  Excellencies  Count 
Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the  Third  Commission;  Chevalier 
Descamps,  president  and  reporter;  Messrs.  Asser,  Baron  d'Estournelles  de  Constant, 
HoLLs,  Lammasch,  Martens,  Odier,  Dr.  Zorn,  members  of  the  committee  of  examination. 
Present  at  the  meeting:  Messrs.  Easily,  Beldiman,  Delyanni,  his  Excellency  Mr.  Eyschen, 
Miyatovitch,  Papiniu,  Dr.  Veljkovitch. 

2  See  annex  10. 

790 


SEVENTEENTH  MEETING,  JULY  19,  1899  791 

settle  the  matter  in  a  friendly  manner,  but  they  are  free.  There  is  no  bond  be- 
tween them  except  that  of  following  their  own  desires. 

Mr.  Asser  supports  Mr.  Martens  on  the  point  of  the  necessity  of  dis- 
tinguishing between  arbitration  and  commissions  of  inquiry.  However,  he  rec- 
ognizes the  ground  for  observations  indicated  by  his  Excellency  Mr.  Eyschen, 
but  they  may  be  formulated  in  Article  10  itself  and  not  in  the  code  of  arbitral 
procedure.  In  this  way  we  shall  avoid  confusing  two  very  different  things: 
arbitration  and  commissions  of  inquiry.  Furthermore,  this  is  the  idea  suggested 
by  Mr.  Lammasch,  and  he  endorses  it  thoroughly. 

His  Excellency  Mr.  Eyschen  was  conscious  of  the  difficulties  which  have 
just  been  set  forth,  furthermore  he  does  not  insist  upon  the  form  and  location  of 
his  amendment.  What  he  does  ask  is  a  serious  guaranty  permitting  commissions 
to  operate  and  render  all  services  which  can  be  expected  of  them,  but  without 
danger.  That  is  why  I  thought,  he  says,  that  it  would  be  necessary  to  provide  in 
advance  and  fix  certain  principles  which  might  serve  to  inform  and  guide  the 
commissioners.  These  principles  constitute  a  triple  guaranty,  which  I  summar- 
ize in  this  form : 

1.  The  act  instituting  the  inquiry  states  definitely  the  facts  to  be  examined 
(enumeration  of  facts). 

2.  Both  sides  shall  be  heard  (the  adverse  party  shall  be  informed  of  all 
statements  of  the  opposite  party). 

3.  It  is  the  duty  of  the  commission  of  inquiry  to  determine  the  forms  and 
period  to  be  observed. 

Chevalier  Descamps  observes  that  without  confusing  arbitration  and  com- 
missions of  inquiry  we  may  nevertheless  adopt  the  necessary  guaranties  in  one 
case  as  well  as  in  the  other.  He  therefore  approves  the  proposition  of  his  Ex- 
cellency Mr.  Eyschen,  which  is  an  improvement  and  fills  a  gap.  This  new 
guaranty  would  also  be  such  as  to  soothe  the  irritation  which  appeared  in  the 
Third  Commission. 

His  Excellency  Count  Nigra,  considering  the  observations  which  have  just 
been  made,  proposes  the  following  text  to  express  the  idea  of  his  Excellency  Mr. 
Eyschen  : 

The  international  commissions  of  inquiry  are  constituted  by  special 
agreement  between  the  parties  in  dispute. 

The  inquiry  convention  defines  the  facts  to  be  examined  and  the 
extent  of  the  powers  of  the  commissioners. 

It  settles  the  procedure. 

At  the  inquiry  both  sides  must  be  heard. 

The  form  and  the  periods  to  be  observed,  if  not  stated  in  the  inquiry  con- 
vention, shall  be  decided  by  the  commission  itself. 

This  draft,  accepted  by  his  Excellency  Mr.  Eyschen,  is  unanimously  adopted 
by  the  committee. 

Article  13 

Mr.  Standoff  proposes  to  add  to  Article  13  the  following  words:  "either 
to  consider  the  latter  as  not  having  been  made  "  after  these  words  "  on  the  basis 
of  this  report "  (line  3).  He  states  briefly  the  object  of  his  amendment  by  saying 
that  he  wished  to  leave  the  Powers  absolute  freedom  to  give  such  effect  to  the 
inquiry  as  they  may  agree  upon  and  to  clearly  affirm  in  this  way  that  it  has  no 
binding  force.     As  for  his  own  views,  he  is  distinctly  in  favor  of  commissions  of 


792  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

inquiry  because  he  thinks  that  we  should  increase  the  juridical  means  which  are 
opposed  to  the  too  direct  contacts  between  the  diplomatic  forces  of  two  States 
—  contacts  in  which  the  ultima  ratio  is  always  reliant  upon  armed  force.  He 
therefore  believes  that  this  new  institution  is  entirely  to  the  advantage  of 
[72]  smaller  Powers,  but  at  the  same  time  to  pacify  the  apprehensions  of  certain 
States  in  the  Balkans  he  proposes  to  state  expressly  that  the  two  litigants  are 
not  bound  in  any  manner  by  the  result  of  the  inquiry. 

The  President,  while  congratulating  himself  on  behalf  of  the  committee  at 
the  attitude  of  the  first  delegate  from  Bulgaria,  and  for  the  spirit  in  which  he 
has  presented  his  amendment,  observes  that  the  expression  "  not  having  been 
made  "  is  too  strong  and  would  too  clearly  incite  nations  to  pay  no  attention  to 
the  reports. 

Mr.  Martens  thinks  it  is  not  necessary  to  anticipate  that  no  effect  will  be 
given  to  the  inquiry.  That  would  scarcely  be  encouraging.  It  is  sufficient  to 
reserve  freedom  to  the  Powers. 

Mr.  Delyanni  declares  that  it  is  necessary  that  States  should  be  plainly  in- 
formed that  they  are  not  bound  by  the  conclusions  of  the  inquiry  and  it  will  be 
desirable  that  an  explicit  statement  to  this  effect  be  inserted. 

Mr.  Asser:  By  saying  that  the  conclusions  are  not  binding,  does  that  sig- 
nify that  the  facts  should  not  necessarily  be  considered  as  elucidated  in  the  re- 
port? 

Mr.  Lammasch:  Article  9  and  Article  13  treat  of  very  different  questions. 
In  Article  9  it  is  a  question  of  ascertaining  whether  the  use  of  commissions  of 
inquiry  is  obligatory  or  not.  In  Article  13  it  is  a  question  of  ascertaining  whether 
the  report  of  the  commission  established  by  the  agreement  of  the  parties  is  bind- 
ing or  not.  If  the  two  litigants  have  agreed  to  have  recourse  to  a  commission  of 
inquiry  in  the  exercise  of  their  complete  freedom  of  action,  why  should  they  not 
give  consideration  to  its  report? 

The  President  understands  the  matter  of  which  Mr.  Asser  was  thinking. 
Will  the  report  be  sufficient  to  make  the  statement  of  facts  authentic?  We  can- 
not enter  into  these  details. 

What  is  certain,  he  continues,  is  that  in  our  eyes  the  report  of  commissions  of 
inquiry  states  simply  the  facts  and  cannot  result  in  imposing  obligations  upon 
the  parties.  We  might  therefore  say :  "  The  report  of  international  commissions 
of  inquiry  is  limited  to  a  statement  of  fa€ts,  etc." 

Dr.  Veljkovitch  asks  whether  we  should  not  reserve  the  adoption  of 
this  article,  because  the  report  of  the  commission  of  inquiry  will  sometimes  be 
binding  in  fact  if  two  Powers  of  unequal  strength  are  opposed  to  each  other :  the 
weaker  will  be  obliged  to  sacrifice  itself. 

Mr.  Martens:  It  would  not  be  necessary,  however,  to  go  so  far  as  to  ac- 
cept a  text  which  would  permit  a  Power  to  make  light  of  the  statement  of  facts, 
so  to  speak. 

Mr.  Lammasch  thinks  it  wise  to  say  that  no  conclusions  should  be  drawn 
in  the  report:  there  should  be  simply  a  statement  of  facts.  The  report  of  this 
international  commission  is  limited  to  a  statement  and  does  not  have  the  char- 
acter of  an  award. 

Chevalier  Descamps  does  not  think  that  a  satisfactory  solution  can  be 
reached  other  than  that  proposed  by  the  President. 

Article  13  is  finally  adopted  unanimously  in  the  following  form  suggested  by 
Mr.  Odier: 


SEVENTEENTH  MEETING,  JULY  19,  1899  793 

The  report  of  the  international  commission  of  inquiry  is  limited  to  a 
finding  of  facts,  and  has  in  no  way  the  character  of  an  award.  It  leaves 
to  the  Powers  in  dispute  entire  freedom  as  to  the  effect  to  be  given  to  this 
finding. 

Article  9 

The  President  declares  that  the  opposition  of  certain  Powers  to  this  article 
arises  from  their  fear  that  some  obligation  is  contained  therein.  This  is  not 
the  idea  of  the  committee ;  we  must  therefore  find  some  phraseology  which  puts 
beyond  doubt  the  voluntary  character  of  commissions  of  inquiry. 

His  Excellency  Count  Nigra  recognizes  that  there  is  reason  to  consider  the 
claim  of  the  Powers  which  shall  be  absolutely  free  to  accept  or  to  refuse  the 
opinion  of  the  commissions  without  being  obliged  to  invoke  either  considerations 
of  honor  or  of  vital  interests :  they  must  not  be  obliged  even  to  give  reasons  and 
they  must  be  able  to  say  merely  that  they  are  unwilling. 

The  President  observes  that  as  soon  as  commissions  of  inquiry  are  con- 
sidered voluntary,  there  is  no  longer  any  reason  for  making  reservations  regard- 
ing circumstances  of  honor  and  vital  interest. 

Mr.  Martens  would  be  resigned  to  this  sacrifice  but  on  the  condition  that 
the  operation  of  commissions  of  inquiry  be  assured  by  obliging  Powers  to  resort 
thereto  because  of  a  moral  obligation  similar  to  that  in  Article  27. 

Dr.  Zorn  declares  that  he  has  been  favorable  to  the  system  of  commis- 
sions of  inquiry;  however  in  order  to  meet  the  objections  which  exist  he  is  of  the 
opinion  that  we  must  make  concessions,  he  thinks  that  the  best  plan  would 
[73]  be  to  avoid  anything  which  might  give  an  obligatory  character  to  Article  9. 
He  recognizes  that  the  situation  between  two  great  Powers  is  not  the 
same  as  between  two  Powers  of  different  strengths.  In  case  the  committee 
should  make  this  concession  he  is  anxious  to  know  whether  the  Balkan  States  will 
on  their  side  come  the  other  half  of  the  way. 

Mr.  Beldiman  cannot  reply  categorically.  The  discussion  upon  Article  9 
seems  to  him  to  be  exhausted.  All  that  he  can  promise  is  to  transmit  the  com- 
promise text  of  the  committee  to  Bucharest  by  telegraph. 

Dr.  Veljkovitch  and  Mr.  Delyanni  make  the  same  declaration. 

His  Excellency  Mr.  Eyschen  wishes,  however,  to  address  to  Mr.  Beldiman 
a  pressing  appeal  in  the  interests  of  the  smaller  Powers  themselves.  He  begs  him 
to  accept  and  to  defend  the  text  of  the  committee.  We  should  consider  the  force 
of  circumstances.  We  can  no  more  cause  differences  between  large  and  small 
States  to  disappear  than  we  can  differences  between  men.  Therefore  Mr. 
Eyschen  would  view  with  regret  the  disappearance  of  clauses  relative  to  honor 
and  vital  interests,  because  these  clauses  would  be  a  protection  especially  to  small 
States.  In  reality  the  small  are  always  exposed  to  the  moral  pressure  of  the 
stronger,  but  the  fact  of  being  able  to  take  shelter  behind  these  clauses  would 
afford  a  further  protection  which  should  not  be  scorned. 

Mr.  Martens  supports  this  observation :  he  does  not  know  why  the  small 
States  do  not  wish  to  profit  by  guaranties  which  have  been  given  them,  because 
in  the  chapter  on  the  commissions  of  inquiry.  Article  9,  as  now  drawn  up,  a 
small  State  is  permitted  to  refuse  an  inquiry  by  authority  of  the  text  of  an  act  of 
The  Hague  signed  by  all  the  Powers  and  by  its  adversary.  Admitting  that  this 
adversary  takes  no  notice  of  the  refusal,  it  will  violate  an  international  agreement 
and  will  consequently  have  the  opinion  of  the  world  against  it.     This  might 


794  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

stop  it.  If  we  strike  out  these  guaranties,  the  small  States  will  have  no  reason 
to  call  upon  it:  they  will  deprive  themselves  voluntarily  of  a  great  strength.  The 
institution  of  commissions  of  inquiry  is  entirely  to  the  advantage  of  the  weak, 
and  they  ignore  their  own  interests  when  they  oppose  them. 

As  for  the  phrase  "  vital  interests  and  national  honor,"  its  omission  is  still 
injurious  to  small  States.  The  latter  may  in  fact  invoke  this  clause  in  the  smal- 
lest discussion  with  great  Powers,  while  we  cannot  understand  the  action  of 
a  great  Power  in  arguing  about  its  vital  interests  in  order  to  avoid  an  investiga- 
tion asked  for  by  a  smaller  Power. 

Mr.  Hells  shares  the  indisputable  opinion  of  Mr.  Martens. 

After  a  general  discussion,  the  committee  decides  to  adopt  a  compromise 
text  intended  to  meet  the  objections  of  the  delegates  from  Roumania,  Serbia  and 
Greece;  the  text  will  be  transmitted  to-day  by  telegram  to  Bucharest,  Belgrade 
and  Athens. 

Mr.  Lammasch  asks  if  the  clause  relative  to  vital  interests  and  national  honor 
should  not  be  maintained. 

Mr.  d'Estournelles  replies  that  this  is  evidently  the  desire  of  the  committee, 
but  we  are  neither  concerned  with  what  is  desired  by  the  committee,  nor  what  is 
the  real  interest  of  the  three  States  the  delegates  of  which  are  raising  objections : 
it  is  a  question  of  furnishing  a  text  for  them  which  will  permit  us  to  attain 
some  result;  let  us  therefore  support  the  text  which  these  three  delegates  will 
accept,  and  wait  until  their  Governments  make  known  whether  they  ratify  this 
acceptance  or  not. 

Mr.  Lammasch  withdraws  his  amendment  relative  to  "  vital  interests  "  in 
order  to  obtain  a  unanimous  vote. 

The  President  asks  the  delegates  from  Roumania,  Serbia  and  Greece  when 
they  hope  for  a  reply  to  their  telegram.  He  urges  the  desirability  of  having  one 
as  soon  as  possible,  the  committee  having  some  fifteen  days  ago  given  all  the 
members  of  the  Conference  notice  to  make  known  their  objections  to  the  draft. 
In  any  case,  the  second  reading  of  the  "  Title  on  commissions  of  inquiry  "  will 
not  come  before  the  Third  Commission  until  the  very  end. 

Before  closing  the  session,  the  President  asks  the  delegates  from  Roumania, 
Serbia  and  Greece  to  kindly  bring  to  the  attention  of  their  Governments  the  spirit 
of  conciliation  and  absolute  fairness  in  which  the  committee  has  ceaselessly  and 
unanimously  labored.  The  committee  is  anxious  to  give  guaranties  to  all  peace- 
ful Powers,  and  above  all  to  the  smallest  and  weakest.  The  President  adds  that 
every  time  that  an  international  court  is  established  in  the  world  there  are  more 
chances  for  it  to  serve  as  a  defense  to  the  weak  than  to  the  strong. 

The  committee  approves  this  interpretation  of  the  spirit  in  which  it  has 
worked,  and  thanks  the  President  for  having  exactly  summarized  its  senti- 
ments. 

The  meeting  adjourns. 


EIGHTEENTH    MEETING 

{Fourth  Special  Meeting) 
JULY  21,   1899  1 


Mr.  Leon  Bourgeois  presiding. 

The  committee  has  met  to  examine  the  amendment  proposed  by  the  delegate 
of  the  United  States  of  America  to  Article  36. 

Question  of  incompatibilities 

Mr.  HoUs :  Properly  speaking  it  is  not  an  amendment  which  we  are  propos- 
ing; it  is  rather  a  question  which  we  wish  to  submit  to  the  consideration  of  the 
committee.  We  propose  that  members  called  upon  to  constitute  the  Permanent 
Court  shall  not  have  a  right  to  serve  at  the  same  time  as  counsel  or  special  agents 
before  the  same  Court  unless  it  is  for  them  to  represent  the  country  which  has 
appointed  them.  This  is  our  proposition.  We  make  it  mainly  for  the  purpose 
of  bringing  about  a  discussion  and  ascertaining  the  opinion  of  the  committee  on 
this  point.  That  is  of  great  importance  to  members  of  the  bar  and  judges  in 
England  and  America,  and  perhaps  in  European  countries. 

The  following  text  might  furnish  a  basis  of  discussion  for  the  committee: 

No  member  of  the  Permanent  Court  of  Arbitration  may,  during  the  term 
of  his  office,  accept  the  duties  of  agent,  lawyer  or  counsel  for  any  Government 
except  his  own  or  that  which  has  appointed  him  a  member  of  the  Court. 

This  text  tends  to  avoid  two  dangers,  obtaining  on  one  hand  judges  who  are  not 
only  independent  but  above  every  suspicion,  and  by  avoiding,  on  the  other  hand, 
any  rule  which  might  unreasonably  restrict  the  free  choice  of  Governments.  It 
is  for  this  last  reason  and  because  the  period  of  service  is  limited  to  six  years  that 
we  have  not  proposed  the  English  maxim  "  once  a  judge,  always  a  judge." 

In  England  and  in  America  there  is  no  question:  he  who  is  fitted  to  be  a 
good  judge  may  be  fitted  to  practice  as  a  lawyer  or  agent  before  the  court.  But 
does  the  same  situation  prevail  in  other  countries?  This  is  doubtful.  It  must 
therefore  be  stated,  if  not  in  the  Convention  at  least  in  the  minutes,  whether 
the  arbitrator  will  be  authorized  to  plead  or  not.     If  we  are  not  careful  to  fix  this 

1  House  in  the  Woods.  Present :  His  Excellency  Mr.  Staal,  president  of  the  Confer- 
ence; Jonkheer  van  Karnebeek,  vice  president  of  the  Conference;  their  Excellencies  Count 
Nigra,  Sir  Julian  Pauncefote,  honorary  presidents  of  the  Third  Commission;  Chevalier 
Descamps,  president  and  reporter;  Messrs.  Asser,  Baron  d'Estournelles  de  Constant, 
HoLLs,  Lammasch,  Martens,  Odier,  Dr.  Zorn,  members  of  the  committee  of  examination. 
Present  at  the  meeting :    Mr.  Easily. 

795 


796  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

rule,  we  shall  leave  the  way  open  for  the  creation  of  precedents  and  very  doubt- 
ful situations  will  be  produced ;  it  is  a  question  of  propriety  and  tact  rather  than 
one  of  law,  which  we  would  do  well  to  decide  in  the  interests  of  satisfactory 
practice  under  the  Convention. 

His  Excellency  Count  Nigra  wonders  whether  it  is  really  necessary  for  the 
committee  to  decide  this  question. 

Mr.  Hells  gives  an  example.  He  supposes  that  Dr.  Zorn  is  named 
as  a  judge  of  Siam.  Could  he  be  a  lawyer  for  Germany  and  a  judge  for  Siam, 
not  in  the  same  proceeding,  of  course,  but  before  the  same  tribunal? 

Chevalier  Descamps:  This  is  a  new  question  which  has  been  presented: 
a  question  of  conflict  of  ofUcial  duties.  Now  the  very  question  of  such  conflict 
is  serious  because  it  reacts  upon  the  selection  of  the  officer  and  the  limitation  of 
his  office.  Take  care  not  to  appear  to  attack  the  freedom  of  States  by  endeavor- 
ing to  provide  for  too  many  situations.  We  might  reach  the  result  which  Mr. 
HoLLS  desires  by  stating  that  each  State  has  the  right  to  fix  its  own 
[75]  conditions  as  to  the  choice  of  arbitrators,  and  to  decide  itself  whether 
arbitrators  shall  or  shall  not  have  both  the  functions  of  arbitrators  and 
those  of  lawyers.  Thus  we  shall  respect  the  exercise  of  national  sovereignty 
while  calling  attention  to  the  question  raised.  It  may  be  desirable  that  this  com- 
bination should  not  exist,  but  to  forbid  it  is  not  our  business.  That  concerns 
the  States.  If  we  adopt  too  absolute  a  rule,  there  might  be  arbitrators  of  abil- 
ity and  authority  who  would  refuse  to  be  placed  upon  the  list  in  order  to  reserve 
the  right  to  be  agents  or  lawyers.  Let  us  limit  ourselves  to  pointing  out  that 
the  combination  is  not  desirable,  but  let  us  reserve  the  freedom  of  Govern- 
ments. 

It  is  not  necessary  either  in  connection  with  this  question  to  touch  upon 
certain  personal  exceptions  which  the  conscience  of  each  arbitrator  alone  can 
settle. 

Mr.  Asser  observes  that  Mr.  Holls  has  not  proposed  the  imposition  of  a 
rule  but  a  statement  of  our  opinion.  That  of  Chevalier  Descamps  is  that  the 
committee  might  wisely  express  an  opinion.  So  far  as  he  is  concerned,  he  does 
not  hesitate  to  declare  that  complete  liberty  of  conscience  must  be  left  to  the 
Governments;  it  is  for  them  to  weigh  their  objections,  not  for  us. 

Dr.  Zom  supports  the  declaration  of  Mr,  Asser. 

Mr.  Holls  replies  that  this  does  not  concern  one  Government  alone  but  all 
Governments,  because  an  arbitrator  designated  by  a  Government  is  recommended 
to  all  the  others,  and  the  entire  world  therefore  is  interested  in  knowing  under 
what  conditions  this  arbitrator  is  named.  That  is  why  Mr.  Holls  insists  upon 
having  the  opinion  of  the  committee. 

Mr.  Lammasch  thanks  the  American  delegate  for  having  raised  this  ques- 
tion, because  the  authority  and  independence  of  the  arbitrators  are  so  essential 
that  to  strengthen  the  confidence  which  they  should  inspire,  every  possible  pre- 
caution should  be  taken  and  we  should  consent  to  some  sacrifices.  Mr.  Lam- 
masch would  be  happy  to  see  a  rule  established  which  would  be  a  limitation  with- 
out at  the  same  time  proving  to  be  an  embarrassment.  Consequently  he  en- 
dorses the  request  presented  by  Mr.  Holls. 

A  general  discussion  arises,  participated  in  by  Jonkheer  van  Karnebeek, 
Messrs.  Asser  and  Leon  Bourgeois,  concerning  the  general  conditions  in  which 
this  limitation  might  be  set  forth. 

The  President  is  impressed  with  the  inconveniences  set  forth  by  Mr.  Holls 


ANNEXES  797 

which  may  be  raised  when  an  arbitrator  has  been  appointed :  then  it  is  undoubtedly 
necessary  to  foresee  and  prevent  the  danger  of  temporary  incompatibility  because 
we  cannot  forget  that  we  have  given  to  the  arbitrators  privileges  such  as  diplo- 
matic immunity.  By  reason  of  these  temporary  privileges,  it  seems  difficult  to 
dispute  the  fact  that  there  is  also  a  temporary  incompatibility.  But  of  course 
outside  the  time  when  the  arbitrator  is  called  upon  to  sit  as  an  arbitrator  no  gen- 
eral incompatibility  can  result  from  the  fact  that  he  is  upon  the  list:  this  fact 
should  not  prevent  him  from  being  an  agent  or  lawyer. 

Mr.  Hells  presents  this  question :  if  he  accepts  an  appointment  as  a  lawyer 
before  the  court,  would  it  be  a  sufficient  reason  to  prevent  him  from  becoming  an 
arbitrator?  Will  he  remain  upon  the  list?  He  hopes  that  the  committee  will  be 
willing  to  express  its  opinion  upon  this  point. 

Chevalier  Descamps  proposes  a  draft  embodying  the  observations  of  Mr. 
Bourgeois. 

His  Excellency  Count  Nigra  upon  this  occasion  makes  the  following  remark : 
some  national  legislations  provide  —  as  does  the  Italian  —  that  any  citizen  ac- 
cepting employment  in  a  foreign  country  loses  his  nationality.  It  should  be 
clearly  understood  that  any  jurist  agreeing  to  act  as  arbitrator  for  a  foreign 
Power  should  not  lose  his  nationality. 

Jonkheer  van  Karnebeek  thinks  that  the  question  is  not  a  practical  one. 

The  President:  The  free  consent  of  Governments  to  the  appointment  of 
arbitrators  implies  their  authority.  The  committee  shares  this  point  of  view  and 
decides  that  mention  thereof  shall  be  made  in  the  minutes. 

Returning  to  the  question  of  duplication  of  duties,  the  committee  decides  that 
the  declaration  proposed  by  Chevalier  Descamps  shall  be  inserted  in  the  report 
in  the  following  terms : 

No  member  of  the  Court  can,  while  exercising  his  duties  as  a  member  of 
the  arbitral  tribunal,  accept  appointment  as  a  special  agent  or  lawyer  before  an 
arbitral  tribunal. 

The  meeting  adjourns. 


Annex  1,  A 

[1] 

OUTLINES  FOR  THE  PREPARATION  OF  A  DRAFT  CONVENTION 

TO  BE  CONCLUDED  BETWEEN  THE  POWERS  TAKING 

PART  IN  THE  HAGUE  CONFERENCE 

Russian  Draft 

Good  offices  and  mediation 

Article  1 

With  the  purpose  of  obviating,  as  far  as  possible,  recourse  to  force  in  in- 
ternational relations,  the  signatory  Powers  have  agreed  to  use  their  best  efforts  to 


798  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

bring  about  by  pacific  means  the  settlement  of  disputes  which  may  arise  between 
them. 

Article  2 

Consequently,  the  signatory  Powers  have  decided  that,  in  case  of  serious  dis- 
agreement or  dispute,  before  an  appeal  to  arms,  they  will  have  recourse,  so  far 
as  circumstances  admit,  to  the  good  offices  or  mediation  of  one  or  more  friendly 
Powers. 

Article  3 

In  the  case  of  mediation  accepted  spontaneously  by  the  litigant  States,  the 
object  of  the  Government  acting  as  mediator  is  to  reconcile  the  opposing  claims 
and  appease  the  feelings  of  resentment  which  may  have  arisen  between  these 
States. 

Article  4 

The  part  of  the  Government  acting  as  mediator  is  at  an  end  when  the  settle- 
ment proposed  by  it  or  the  bases  of  a  friendly  settlement  which  it  may  have  sug- 
gested are  not  accepted  by  the  litigant  States. 

Article  5 

The  Powers  consider  it  useful  in  case  of  serious  disagreement  or  conflict 
between  civilized  States  concerning  questions  of  a  political  nature,  independently 
of  the  recourse  which  these  Powers  might  have  to  the  good  offices  and  mediation 
of  Powers  not  involved  in  the  dispute,  for  the  latter,  on  their  own  initiative  and 
so  far  as  circumstances  will  allow,  to  offer  their  good  offices  or  their  mediation 
in  order  to  smooth  away  the  difficulty  which  has  arisen,  by  proposing  a  friendly 
settlement,  which  without  affecting  the  interest  of  other  States,  might  be  of 
such  a  nature  as  to  reconcile  in  the  best  way  possible  the  interests  of  the  litigant 
parties. 

Article  6 

It  is  of  course  understood  that  mediation  and  good  offices,  whether  offered 
on  the  initiative  of  the  litigant  parties  or  upon  that  of  the  neutral  Powers,  have 
strictly  the  character  of  friendly  advice  and  no  binding  force  whatever. 

International  arbitration 

Article  7 

With  regard  to  those  controversies  concerning  legal  questions,  and  espe- 
cially with  regard  to  those  concerning  the  interpretation  or  application  of  treaties 
in  force,  arbitration  is  recognized  by  the  signatory  Powers  as  being  the  most  ef- 
fective and  at  the  same  time  the  most  equitable  means  for  the  friendly  settlement 
of  these  disputes. 

Article  8 

The  contracting  Powers  consequently  agree  to  have  recourse  to  arbitration 
in  cases  involving  questions  of  the  character  above  mentioned,  so  far  as  they 
do  not  concern  the  vital  interest  or  national  honor  of  the  litigant  Powers. 

[2]  Article  9 

Each  State  remains  the  sole  judge  of  whether  this  or  that  case  should  be 


ANNEXES  799 

submitted  to  arbitration,  excepting  those  enumerated  in  the  following  article,  in 
which  cases  the  signatory  Powers  to  the  present  document  consider  arbitration 
as  obligatory  upon  them. 

Article  10 

Upon  the  ratification  of  the  present  document  by  all  the  signatory  Powers, 
arbitration  will  be  obligatory  in  the  following  cases,  so  far  as  they  do  not  con- 
cern the  vital  interests  nor  national  honor  of  the  contracting  States: 

I.  In  case  of  differences  or  disputes  relating  to  pecuniary  damages  suffered 
by  a  State,  or  its  nationals,  as  a  consequence  of  illegal  actions  or  negligence  on 
the  part  of  another  State  or  its  nationals : 

II.  In  case  of  disagreement  relating  to  the  interpretation  or  application  of 
the  treaties  and  conventions  mentioned  below : 

1.  Treaties  and  conventions  relating  to  the  posts  and  telegraphs,  railroads, 
and  also  those  bearing  upon  the  protection  of  submarine  telegraph  cables;  regu- 
lations concerning  methods  to  prevent  collisions  of  vessels  on  the  high  seas ;  con- 
ventions relating  to  the  navigation  of  international  rivers  and  interoceanic  canals. 

2.  Conventions  concerning  the  protection  of  literary  and  artistic  property 
as  well  as  industrial  property  (patents,  trade-marks,  and  trade-names)  ;  conven- 
tions relating  to  money  and  measures;  conventions  relating  to  sanitation  and 
veterinary  surgery,  and  for  the  prevention  of  phylloxera. 

3.  Conventions  relating  to  inheritance,  exchange  of  prisoners,  and  reciprocal 
assistance  in  the  administration  of  justice. 

4.  Conventions  for  marking  boundaries,  so  far  as  they  concern  purely  tech- 
nical and  non-political  questions. 

Article  11 

The  enumeration  of  the  cases  mentioned  in  the  above  article  may  be  com- 
pleted by  subsequent  agreements  between  the  signatory  Parties  of  the  present 
Act. 

Besides,  each  of  them  may  enter  into  a  special  agreement  with  any  other 
Power,  with  a  view  to  making  arbitration  obligatory  in  the  above  cases  before 
general  ratification,  as  well  as  to  extend  the  scope  thereof  to  all  cases  which  the 
State  may  deem  it  possible  to  submit  to  arbitration. 

Article  12 

In  all  other  cases  of  international  disputes,  not  mentioned  in  the  above 
articles,  arbitration,  while  certainly  very  desirable  and  recommended  by  the  pres- 
ent Act,  is  only  voluntary ;  that  is  to  say,  it  cannot  be  resorted  to  except  upon 
the  suggestion  of  one  of  the  parties  in  litigation,  made  by  its  own  accord  and 
v.ith  the  express  consent  and  full  agreement  of  the  other  party  or  parties. 

Article  13 

With  a  view  to  facilitating  recourse  to  arbitration  and  its  application,  the 
signatory  Powers  have  agreed  to  define  by  common  agreement  the  fundamental 
principles  to  be  observed  by  the  institution,  and  the  rules  of  procedure  to  be 
followed  during  the  examination  of  the  dispute  and  the  delivery  of  the  arbitral 
decision  in  cases  of  international  arbitration. 

The  application  of  these  fundamental  principles,  as  well  as  of  arbitral  pro- 


800  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

cedure,  indicated  in  the  appendix  to  the  present  article,  may  be  modified  by  a 
special  agreement  between  the  States  which  resort  to  arbitration. 

International  commissions  of  inquiry 

Article  14 

In  cases  which  may  arise  between  the  signatory  States  where  differences  of 
opinion  with  regard  to  local  circumstances  have  given  rise  to  a  dispute  of  an 
international  character  which  cannot  be  settled  through  the  ordinary  diplomatic 
channels,  but  wherein  neither  the  honor  nor  the  vital  interests  of  these  States 
are  involved,  the  interested  Governments  agree  to  form  an  international  commission 
of  inquiry  in  order  to  ascertain  the  circumstances  forming  the  basis  of  the  dis- 
agreement and  to  elucidate  the  facts  of  the  case  by  means  of  an  impartial  and 
conscientious  investigation. 

[3]  Article  15 

These  international  commissions  are  formed  as  follows: 

Each  interested  Government  names  two  members  and  the  four  members  to- 
gether choose  the  fifth  member,  who  is  also  the  president  of  the  commission.  In 
case  of  equal  voting  for  the  selection  of  a  president,  the  two  interested  Govern- 
ments by  common  agreement  address  a  third  Government  or  a  third  person,  who 
shall  name  the  president  of  the  commission. 

Article  16 

The  Governments  between  which  a  serious  agreement  or  a  dispute  under 
the  conditions  above  indicated  has  arisen,  undertake  to  supply  the  commission  of 
inquiry  with  all  means  and  facilities  necessary  to  a  thorough  and  conscientious 
study  of  the  facts  in  the  case. 

Article  17 

The  international  commission  of  inquiry,  after  having  stated  the  circum- 
stances under  which  the  disagreement  or  dispute  has  arisen,  communicates  its 
report  to  the  interested  Governments,  signed  by  all  the  members  of  the  commission. 

Article  18 

The  report  of  the  international  commission  of  inquiry  has  in  no  way  the  char- 
acter of  an  award;  it  leaves  the  disputing  Governments  entire  freedom  either  to 
conclude  a  settlement  in  a  friendly  way  on  the  basis  of  the  above-mentioned 
report,  or  to  resort  to  arbitration  by  concluding  an  agreement  ad  hoc,  or  finally, 
Xo  resort  to  such  use  of  force  as  is  accepted  in  international  relations. 


ANNEXES  801 

Annex  1,  B 

[4] 

APPENDIX  B 
Appendix  to  Article  12 

Russian  draft  of  arbitral  code 

Article  1 

The  signatory  Powers  have  approved  the  principles  and  rules  below  for 
arbitral  procedure  between  nations,  except  for  modifications  which  may  be  intro- 
duced in  each  special  case  by  common  agreement  between  litigant  Governments. 

Article  2 

The  interested  States,  having  accepted  arbitration,  sign  a  special  act  (com- 
promis)  in  which  the  questions  submitted  to  the  decision  of  the  arbitrator  are 
clearly  defined  as  well  as  all  of  the  facts  and  legal  points  involved  therein,  and  in 
which  is  found  a  formal  confirmation  of  the  agreement  of  the  two  contracting 
Powers  to  submit  in  good  faith  and  without  appeal  to  the  arbitral  decision  which 
is  to  be  rendered. 

Article  3 

The  compromis  thus  freely  concluded  by  the  States  may  adopt  arbitration, 
either  for  all  disputes  arising  between  them  or  for  disputes  of  a  special  class. 

Article  4 

The  interested  Governments  may  entrust  the  duties  of  arbitrator  to  the 
sovereign  or  the  chief  of  State  of  a  third  Power  when  the  latter  agrees  thereto. 
They  may  also  entrust  these  duties  either  to  a  single  person  chosen  by  them,  or  to 
an  arbitral  tribunal  formed  for  this  purpose. 

In  the  latter  case  and  in  view  of  the  importance  of  the  dispute  the  arbitral 
tribunal  may  be  formed  as  follows:  each  contracting  party  chooses  two  arbi- 
trators and  all  the  arbitrators  together  choose  the  umpire  who  is  de  jure  president 
of  the  arbitral  tribunal. 

In  case  of  equal  voting  the  litigant  Governments  shall  address  a  third  Power 
or  a  third  person  by  common  agreement  and  the  latter  shall  name  the  umpire. 

Article  5 

If  the  litigant  parties  do  not  arrive  at  an  agreement  upon  the  choice  of  the 
third  Government  or  person  mentioned  in  the  preceding  article,  each  of  the 
parties  shall  name  a  Power  not  involved  in  the  dispute  so  that  the  Powers  thus 
chosen  by  the  litigant  Powers  may  designate  an  umpire  by  common  agreement. 

Article  6 

The  disability  or  reasonable  challenge,  even  if  of  but  one  of  the  above  arbi- 
trators, as  well  as  the  refusal  to  accept  the  ofiice  of  arbitrator  after  the  acceptance, 
or  death  of  an  arbitrator  already  chosen,  invalidates  the  entire  compromis  except 


802  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

in  cases  where  these  conditions  have  been  foreseen  and  provided  for  in  advance 
by  common  agreement  between  the  contracting  Parties. 

Article  7 

The  meeting-place  of  the  arbitral  tribunal  shall  be  fixed  either  by  the  con- 
tracting States,  or  by  the  members  of  the  tribunal  themselves.  A  change  from 
this  meeting-place  of  the  tribunal  is  not  permissible  except  by  a  new  agreement 
between  the  interested  Governments,  or  in  case  of  force  majeure,  upon  the  initia- 
tive of  the  tribunal  itself. 
[5]  Article  8 

The  litigant  Powers  have  the  right  to  appoint  delegates  or  special  agents 
attached  to  the  arbitral  tribunal  for  the  purpose  of  serving  as  intermediaries  be- 
tween the  tribunal  and  the  interested  Governments. 

Besides  these  agtnts  the  above-mentioned  Governments  are  authorized  to 
commit  the  defense  of  their  rights  and  interests  before  the  arbitral  tribunal  to 
counsel  or  advocates  appointed  by  them  for  this  purpose. 

Article  9 

The  arbitral  tribunal  decides  what  language  shall  be  used  in  its  deliberations 
and  arguments  of  the  parties. 

Article  10 

Arbitral  procedure  should  generally  cover  two  phases,  preliminary  and  final. 

The  former  consists  in  the  communication  to  the  members  of  the  arbitral 
tribunal  by  the  agents  of  the  contracting  parties  of  all  acts,  documents,  and  argu- 
ments, printed  or  written,  regarding  the  questions  in  litigation. 

The  second  —  final  or  oral  —  consists  of  the  debates  before  the  arbitral 
tribunal. 

Article  11 

After  the  close  of  the  preliminary  procedure  the  debates  open  before  the 
arbitral  tribunal  and  are  under  the  direction  of  the  president. 

Minutes  of  all  these  deliberations  are  drawn  up  by  secretaries  appointed  by 
the  president  of  the  tribunal.     These  minutes  are  of  legal  force. 

Article  12 

The  preliminary  procedure  being  concluded  the  arbitral  tribunal  has  the 
right  to  refuse  all  new  acts  and  documents  which  the  representatives  of  the  parties 
may  desire  to  submit  to  it. 

Article  13 

The  arbitral  tribunal,  however,  is  always  absolutely  free  to  take  into  con- 
sideration new  papers  or  documents  which  the  delegates  or  counsel  of  the  two 
litigant  Governments  have  made  use  of  during  their  explanations  before  the 
tribunal. 

The  latter  has  the  right  to  require  the  production  of  these  papers  or  docu- 
ments and  to  make  them  known  to  the  opposite  party. 

Article  14 

The  arbitral  tribunal  besides  has  the  right  to  require  the  agents  of  the  parties 
to  present  all  the  acts  or  explanations  which  it  may  need. 


ANNEXES  803 

Article  15 

The  agents  and  counsel  of  litigant  Governments  are  authorized  to  present 
orally  to  the  arbitral  tribunal  all  the  explanations  or  proofs  which  will  aid  the 
defense  of  the  cause. 

Article  16 

These  agents  and  counsel  have  also  the  right  to  present  motions  to  the 
tribunal  concerning  the  matters  to  be  discussed. 

The  decisions  of  the  tribunal  upon  these  motions  are  final  and  cannot  form 
the  subject  of  any  discussion. 

Article  17 

The  members  of  the  arbitral  tribunal  are  entitled  to  put  questions  to  the  agents 
or  counsel  of  the  contracting  Parties  or  to  ask  them  for  explanations  on  doubtful 
points. 

Neither  the  questions  put  nor  the  remarks  made  by  the  members  of  the 
tribunal  during  the  deliberations  can  be  regarded  as  expressions  of  opinion  by 
the  tribunal  in  general  or  by  its  members  in  particular. 

[6]  Article  18 

The  arbitral  tribunal  alone  is  authorized  to  determine  its  competence  in 
interpreting  the  clauses  of  the  compromis,  and  according  to  the  principles  of 
international  law  as  well  as  the  provisions  of  special  treaties  which  may  be  in- 
voked in  the  case. 

Article  19 

The  arbitral  tribunal  is  entitled  to  issue  rules  of  procedure  for  the  conduct 
gf  the  case,  to  decide  the  forms  and  time  in  which  each  party  must  conclude  its 
arguments  and  to  pass  upon  the  interpretation  of  the  documents  produced  and 
communicated  to  the  two  parties. 

Article  20 

When  the  agents  and  counsel  of  the  parties  have  submitted  all  the  explana- 
tions and  evidence  in  defense  of  their  case,  the  president  of  the  arbitral  tribunal 
shall  pronounce  the  discussion  closed. 

Article  21 

The  deliberations  of  the  arbitral  tribunal  on  the  merits  of  the  case  take  place 
in  private. 

Every  decision,  whether  final  or  interlocutory,  is  taken  by  the  majority  of 
the  members  present. 

The  refusal  of  a  member  of  the  tribunal  to  vote  must  be  recorded  in  the 
minutes. 

Article  22 

The  award  given  by  a  majority  of  votes  should  be  drawn  up  in  writing  and 
signed  by  each  member  of  the  arbitral  tribunal. 

Those  members  who  are  in  the  minority  state  their  dissent  when  signing. 

Article  23 
The  arbitral  award  is  solemnly  read  out  at  a  public  sitting  of  the  tribunal 
and  in  the  presence  of  the  agents  and  counsel  of  the  Governments  at  variance. 


804  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

Article  24 

The  arbitral  award,  duly  pronounced  and  notified  to  the  agents  of  the  Gov- 
ernments at  variance,  settles  the  dispute  between  them  definitely  and  without 
appeal,  and  closes  all  of  the  arbitral  procedure  instituted  by  the  compromis. 

Article  25 

Each  party  shall  pay  its  own  expenses  and  one-half  of  the  expenses  of  the 
arbitral  tribunal  without  prejudice  to  the  decision  of  the  tribunal  regarding  the 
indemnity  that  one  or  the  other  of  the  parties  may  be  ordered  to  pay. 

Article  26 

The  arbitral  award  is  void  in  case  of  a  void  compromis  or  exceeding  of  power, 
or  of  corruption  proved  against  one  of  the  arbitrators. 

The  procedure  above  indicated  concerning  the  arbitral  tribunal  and  begin- 
ning with  Section  7  commencing  with  the  words  "  the  seat  of  the  arbitral  tri- 
bunal "  also  applies  in  case  arbitration  is  entrusted  to  a  single  person  chosen  by 
the  interested  Governments. 

In  case  a  sovereign  or  head  of  a  State  should  reserve  the  right  to  decide  per- 
sonally as  arbitrator,  the  procedure  to  be  followed  should  be  fixed  by  the  sovereign 
or  the  head  of  the  State  himself. 


Annex  1,  C 
[7] 

EXPLANATORY  NOTE  CONCERNING  ARTICLE  5  OF  THE 

RUSSIAN  DRAFT 

The  Conference  which  is  about  to  meet  at  The  Hague  is  essentially  different 
from  those  which  were  held  at  Geneva  (in  1864),  at  St.  Petersburg  (in  1868), 
and  at  Brussels  (in  1874). 

These  early  conferences  intended  to  humanize  war  after  war  had  been  de- 
clared ;  while  the  assembly  convoked  at  The  Hague  must  devote  itself  especially 
to  the  discovery  of  methods  to  prevent  the  very  declaration  of  war.  The  Hague 
Conference  therefore  must  be  a  Peace  Conference  in  the  most  positive  sense  of 
the  term. 

Practice  of  international  law  has  worked  out  a  complete  set  of  methods  to 
prevent  war  by  the  pacific  settlement  of  international  disputes,  and  among  these 
must  be  set,  above  all,  good  offices,  mediation,  and  arbitration.  It  seems  very 
natural  that  the  Conference  should  consider  the  perfecting  of  the  guaranties  and 
methods  already  existing  for  the  assurance  of  lasting  peace  among  nations,  instead 
of  seeking  new  means  which  have  not  been  tried  and  sanctioned  by  practice.  With 
this  in  mind  the  Conference  should  especially  give  its  attention  to  "  good  offices  " 
and  "  mediation  "  by  third  parties ;  that  is,  by  Powers  which  are  not  involved 
in  the  conflict  presumed  to  exist.^    " 

1  The  distinction  made  between  "  good  offices  "  and  "  mediation  "  is  entirely  theoretical. 


ANNEXES  805 

Mediation  should  doubtless  be,  from  its  very  nature,  placed  among  the  most 
useful  and  practical  methods  in  the  law  of  nations.  Being  a  necessary  response  to 
that  real  community  of  material  and  moral  interests  which  creates  an  interna- 
tional union  among  the  various  States,  mediation  should  inevitably  acquire  a  con- 
tinually increasing  importance  and  value,  in  proportion  to  the  increasing  intimacy 
among  States  and  the  development  of  their  international  relations.  The  possible 
advantage  of  mediation,  if  we  compare  it  with  the  other  methods  used  to  settle 
international  disputes,  is  especially  the  remarkable  elasticity  of  its  operation,  the 
ease  with  which  it  is  adapted  to  the  particular  circumstances  of  each  given  case, 
as  well  as  the  variety  of  forms  arising  from  this  ease  of  adaptation.  Being  de- 
pendent upon  the  free  consent  of  the  parties,  mediation  does  not  in  the  least 
threaten  the  principle  of  their  sovereignty  nor  the  liberty  or  independence  of 
States;  it  influences  the  arbitrator  freely  chosen  by  them  without  ever  opposing 
him,  without  ever  calling  him  in  question. 

There  is  no  doubt  that  arbitration,  generally  speaking,  is  a  more  effective 
and  radical  method  than  mediation;  but  arbitration  being  of  a  legal  nature,  its 
application  is  essentially  and  even  exclusively  restricted  to  cases  where  there  is  a 
conflict  of  international  rights,  while  mediation,  although  of  a  political  character, 
is  equally  applicable  to  the  conflicts  of  interests  which  most  often  threaten  peace 
among  nations.  Finally,  it  is  equally  essential  to  note  that  mediation  is  distin- 
guished from  other  analogous  modes  of  action  by  an  astonishing  simplicity  of 
appHcation  which  demands  no  previous  preparation  whatever.  This  instrument, 
in  daily  use  in  diplomacy,  tactfully  and  skillfully  handled  and  guided  by  a  sincere 
desire  to  serve  in  the  work  of  peace,  seems  called  upon  to  play  a  striking  and 
beneficent  role  in  the  future. 

However,  mediation  has  up  to  the  present  played  a  most  modest  role  in  the 
settlement  of  international  difficulties  ;  this  statement  is  supported  by  the  history  of 
even  the  most  recent  disputes. 

If  we  look  for  the  reason  for  this  fact,  we  must  consider  first  how  unsatis- 
factory is  the  status  of  mediation  in  the  theory  as  well  as  in  the  practice  of  inter- 
national law. 

By  the  terms  of  Article  8  of  the  Treaty  of  Paris  the  Sublime  Porte,  as  well 
as  the  other  signatory  Powers  to  that  treaty,  is  bound  to  submit  every  future  dis- 
agreement which  may  arise  between  any  of  them  to  the  mediation  of  the  other 

Powers,  to  prevent  the  use  of  force. 
[8]   Giving  this  idea  a  more  general  scope,  Article  23  of  the  protocol  of  the 

Congress  of  Paris,  inserted  at  the  suggestion  of  Lord  Clarendon,  British 
Plenipotentiary,  expresses  the  desire  that  States  between  which  serious  disagree- 
ments may  arise  shall  request  the  good  offices  of  a  friendly  Power  so  far  as  cir- 
cumstances permit  rather  than  resort  to  arms. 

In  the  same  way,  at  the  African  Conference  at  Berlin,  in  1885,  the  Powers 
mutually  agreed  to  resort  first  of  all  to  mediation  by  one  or  several  neutral  States 
in  case  disagreement  arose  between  them  concerning  the  Congo  and  its  basin. 

The  provisions  above  set  forth  are  inspired  by  one  and  the  same  thought 
expressed  in  almost  identical  terms.  They  oblige  all  the  States  interested  in  the 
dispute  to  request  mediation ;  they  do  not  mention  the  duty  of  neutrals  to  propose 

These  methods  are  legally  identical  in  character  and  differ  only  in  degree  and  the  importance 
of  their  results.  Diplomacy  has  never  insisted  upon  this  distinction.  (Cf.  Article  9  of  the 
Treaty  of  Paris  of  1856,  and  Article  23  of  the  protocol  of  the  Congress  of  Paris,  1856.) 


806  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

it.     From  this  point  of  view  mediation  imposes  duties  upon  the  States  directly 
interested  but  not  upon  neutral  States. 

This  sort  of  mediation,  very  irregular  from  a  theoretical  point  of  view,  has 
also  the  disadvantage  of  making  mediation  unattainable  from  a  practical  point  of 
view.  The  request  for  mediation  necessarily  presupposes  a  previous  agreement 
between  the  interested  States  with  regard  to  the  necessity  and  the  opportunity  for 
it.  Now,  such  an  agreement  is  not  always  possible  in  the  heat  of  a  dispute 
between  interests  diametrically  opposed  to  each  other.  In  any  case  we  cannot 
consider  the  making  of  the  request  for  mediation  obligatory  on  the  part  of  the 
States  whose  interests  are  in  question,  especially  since  that  requires  that  opposing 
desires  be  harmonized  and  that  the  parties  agree  in  the  choice  of  a  mediator. 

Treaties,  unhappily  still  less  numerous,  which  make  the  request  for  arbitra- 
tion obligatory,  at  the  same  time  regulate,  and  generally  in  advance,  the  organiza- 
tion of  the  tribunal  called  upon  to  render  the  arbitral  decision,  without  making 
this  organization  dependent  upon  the  consent  or  dissent  of  the  interested  parties.^ 
It  goes  without  saying  that  treaties  cannot  deal  with  the  obligation  of  parties 
to  choose  a  mediator,  whose  advice  could  be  only  of  moral  effect  proportionate  to 
the  respect  and  confidence  which  he  inspired  in  the  interested  parties.  The  desig- 
nation of  mediators  must  necessarily  be  brought  about  by  the  agreement  of  the 
parties ;  now,  since  this  agreement  depends  absolutely  upon  their  good-will,  and 
may,  even  if  this  good-will  is  secured,  be  unattainable,  it  follows  that  we  should 
not  consider  the  request  for  mediation  as  obligatory  upon  the  States  directly 
interested.  Even  if  the  treaties  did  impose  such  a  duty  upon  States,  in  case  of  a 
dispute,  this  duty  would  still  be,  generally  speaking,  ineffective,  because  conven- 
tions could  not  oblige  States,  in  spite  of  everything,  to  agree  upon  this  or  that 
mediator. 

This  view  is  confirmed  by  the  history  of  international  relations  since  the 
Congress  of  Paris,  1856.  Thus  within  the  last  forty  years  there  have  been  sev- 
eral cases  where  neutral  States,  referring  to  Article  23  of  the  protocol  of  the 
Congress  of  Paris,  have  offered  their  mediation  and  good  offices  to  States  in  con- 
troversy ;  but  there  has  not  been  a  single  case  where  the  States  in  controversy 
have  addressed  a  request  for  mediation  to  neutral  States.  Last  year,  at  the  time 
of  the  dispute  between  France  and  England,  concerning  Fashoda,  neither  one  nor 
the  other  of  these  Powers  thought  of  resorting  to  the  provisions  adopted  at  the 
Conference  at  Berlin  in  1885,  and  did  not  appeal  to  the  mediation  of  a  third 
Power.     We  might  cite  other  examples  of  a  similar  character. 

As  for  the  obligation  for  neutral  States  to  offer  mediation  to  States  in  con- 
troversy when  not  established  by  treaty,  this  is  not  recognized  nor  observed  by 
any  one.  In  theory,  too,  some  authors  have  gone  so  far  as  to  assert  that  neutral 
States  are  not  only  not  obliged  to  offer  mediation  to  disputing  States,  but  that 
they  have  not  the  right  to  do  so.  Bluntschli  and  Heffter  consider  mediation 
as  a  dangerous  and  injurious  interference  in  the  affairs  of  others.  Hautefeuille 
and  Galiani  advise  States  prudently  to  abstain  from  mediation,  fearing  to  alien- 
ate the  sympathies  of  one  or  other  of  the  parties  in  controversy  without  justifica- 
tion. In  short,  we  might  cite,  as  a  matter  of  practice,  a  number  of  examples  of 
serious  disputes,  which  later  ended  in  war,  which  did  not  suggest  to  neutrals  the 
least  idea  of  attempting  to  offer  mediation ;  however,  proposals  of  this  character, 

1  See,  for  example,  Article  16  of  the  General  Postal  Convention  signed  at  Berne  in  1874, 
and  Article  8  of  the  treaty  signed  in  Washington  in  1890. 


ANNEXES  .       807 

especially  in  cases  where  they  might  have  come  simultaneously  from  several 
Powers,  could  have  prevented  wars  the  effects  of  which  have  been  incalculable 
upon  all  the  States  constituting  the  international  community. 

In  many  cases  the  offer  of  mediation  comes  so  late  and  in  such  uncertain 

terms  that  it  cannot  prevent  war.  For  example,  such  was  the  case  when 
[9]  the  French  Government  in  1870  refused  the  "  good  offices  "  of  England  when 

the  war  broke  out  between  France  and  Germany. 

Finally,  it  often  happens  that  mediation  is  proposed  not  with  the  view  to 
prevent  war,  but  in  order  to  end  it. 

Several  recent  wars  —  the  Austro-Prussian  War  of  1866,  that  between  Chile, 
Peru,  and  Bolivia  in  1882,  that  between  Greece  and  Turkey  in  1897,  and  still 
others  —  were  terminated,  thanks  to  the  mediation  of  neutral  Powers.  If  these 
same  Powers  had  made  use  of  all  the  energy  they  employed  to  terminate  these 
wars  in  an  effort  to  prevent  them,  it  is  possible  that  Europe  would  have  been 
spared  more  than  one  armed  conflict. 

After  what  has  just  been  said,  it  is  not  difficult  to  indicate  the  way  for  the 
Conference  to  increase  the  importance  and  enlarge  the  scope  of  mediation,  by 
making  it  a  permanent  and  necessary  institution  in  international  law.  Innumer- 
able reciprocal  entangling  interests  envelop  civilized  States  in  a  close  and  inex- 
tricable net.  The  principle  of  isolation,  which  but  lately  still  dominated  the 
political  life  of  each  nation,  has  given  way  henceforth  to  a  close  solidarity  of 
interests,  to  common  participation  in  the  moral  and  material  benefits  of  civilization. 

Modern  States  cannot  stand  indifferent  to  international  conflicts  wherever 
they  may  arise  and  whoever  may  be  the  parties  in  controversy.  At  the  present 
time,  a  war  even  between  two  States  seems  to  be  an  international  evil.  To 
fight  this  evil  it  is  necessary  to  employ  methods  of  a  general  character ;  we  must 
combine  the  efforts  of  each  and  every  State. 

From  this  point  of  view,  each  Power  must  employ  its  every  effort  to  bring 
into  action  all  its  energies  to  prevent  conflicts  which  threaten  peace,  while  respect- 
ing, of  course,  the  independence  of  other  sovereign  States.  In  particular,  each 
State  should,  so  far  as  circumstances  will  allow,  offer  mediation  to  disputing 
States  the  moment  it  has  the  least  hope  of  preventing  thereby  the  terrible  evils 
of  war. 

It  is  because  they  realize  the  serious  consequences  which  one  or  another 
result  of  war  may  have  for  the  international  community,  that  neutral  States 
ordinarily  offer  to  the  belHgerent  parties  mediation  for  the  conclusion  of  peace. 
Mediation  of  this  character,  generally  collective,  often  makes  it  impossible  for  the 
victor  to  derive  from  his  victories  the  advantages  for  which  the  war  was  under- 
taken. 

The  important  fact,  without  doubt,  so  far  as  neutral  States  are  concerned, 
is  not  merely  the  result  of  a  war  but  the  very  fact  that  it  has  taken  place.  It 
follows  that  the  interests  of  neutrals  require  that  mediation  should  be  proposed 
by  them  not  only  to  end  a  war  already  begun,  but  above  all  to  prevent  the  out- 
break. This  is  also  to  the  interest  of  the  States  in  controversy,  and  all  the  more 
so  since  when  war  breaks  out,  each  belligerent  State  is  interested,  to-day,  to  know 
the  attitude  of  the  neutral  Powers  with  regard  to  the  conflict  in  order  to  be  able 
to  calculate  and  determine,  not  only  the  power  of  resistance  of  the  adversary 
during  the  war,  but  also  the  pressure  which  will  come  from  the  neutral  Powers 
at  the  conclusion  of  peace. 


808  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

The  theory  of  international  law,  as  shown  by  its  most  highly  respected  repre- 
sentatives, such  as  Travers-Twiss,  Phillimore,  Pradier-Fodere,  Martens,  and 
others,  has  for  a  long  time  considered  mediation  as  a  duty  on  the  part  of  neutral 
States.  The  Peace  Conference  will  perhaps  deem  it  useful  to  proclaim  this  duty 
before  all  humanity,  so  that  mediation  will  be  given  the  value  of  a  powerful  instru- 
ment for  peace. 


Annex  1,  D 

[10] 

EXPL.\NATORY  NOTE  CONCERNING  ARTICLE  10  OF  THE 

RUSSIAN  DRAFT 

In  entering  upon  an  examination  of  the  question  of  arbitration,  we  must  first 
of  all  bear  in  mind  the  essential  difference  between  obligatory  and  voluntary 
arbitration. 

As  a  general  question,  it  is  difficult  to  conceive  of  any  dispute  whatever  of  a 
legal  character,  arising  in  the  field  of  positive  international  law,  which  could  not  by 
virtue  of  agreement  between  the  parties  be  decided  by  means  of  voluntary  inter- 
national arbitration.  Even  in  case  international  law,  which  unfortunately  still 
contains  so  many  gaps,  does  not  furnish  a  generally  recognized  rule  for  the  solution 
of  the  concrete  question,  the  compromis  concluded  between  the  parties  prior  to 
the  arbitration  may,  however,  create  a  principle  ad  hoc,  and  in  this  way  facilitate 
considerably  the  task  of  the  arbitrator. 

It  is  different  with  obligatory  arbitration,  which  does  not  depend  upon  the 
special  consent  of  the  parties.  It  goes  without  saying  that  this  form  of  arbitration 
cannot  apply  to  all  cases  and  all  kinds  of  disputes.  There  is  no  Government 
which  would  consent  in  advance  to  assume  the  obligation  to  submit  to  a  decision 
of  an  arbitral  tribunal  every  dispute  which  might  arise  in  the  international  domain 
if  it  concerned  the  national  honor  of  a  State,  or  its  highest  interests,  or  its  inalien- 
able possessions.  In  fact,  the  mutual  rights  and  duties  of  States  are  determined 
to  a  marked  degree  by  the  totality  of  what  we  call  political  treaties,  which  are 
nothing  but  the  temporary  expression  of  chance  and  transitory  relationship  be- 
tween the  various  national  forces.  These  treaties  restrict  the  freedom  of  action 
of  the  parties  so  long  as  the  political  conditions  under  which  they  are  produced 
are  unchanged.  Upon  a  change  in  these  conditions  the  rights  and  obligations 
following  from  these  treaties  necessarily  change  also.  As  a  general  rule,  dis- 
putes which  arise  in  the  field  of  political  treaties  in  most  cases  concern  not  so 
much  a  difference  of  interpretation  of  this  or  that  principle,  as  the  changes  to  be 
made  in  the  treaty,  or  the  complete  abrogation  thereof. 

Powers  which  take  an  active  part  in  the  politics  of  Europe  cannot  therefore 
submit  disputes  arising  in  the  field  of  political  treaties  to  the  examination  of  an 
arbitral  tribunal,  in  whose  eyes  the  principle  established  by  the  treaty  would  be 
just  as  obligatory,  just  as  inviolable,  as  the  principle  established  by  the  positive 
law  in  the  eyes  of  any  national  tribunal  whatever. 


ANNEXES  809 

From  the  point  of  view  of  practical  politics,  the  impossibility  of  universal 
obligatory  arbitration  seems  evident. 

But  from  another  point  of  view,  it  cannot  be  doubted  that  in  international 
life  differences  often  arise  which  may  absolutely  and  at  all  times  be  submitted  to 
arbitration  for  solution;  these  are  questions  which  concern  exclusively  special 
points  of  law  and  which  do  not  touch  upon  the  vital  interests,  or  national  honor 
of  States.  We  do  not  desire  that  the  Peace  Conference  should,  so  far  as  these 
questions  are  concerned,  set  up  arbitration  as  the  permanent  and  obligatory 
method. 

The  recognition  of  the  obligatory  character  of  arbitration,  were  it  only  within 
the  most  restricted  limits,  would  strengthen  legal  principles  in  relations  between 
nations,  would  guarantee  them  against  infractions  and  encroachments;  it  would 
neutralize,  so  to  speak,  more  or  less,  large  fields  of  international  law.  For  the 
States  obligatory  arbitration  would  be  a  convenient  means  of  avoiding  the  mis- 
understandings, so  numerous,  so  troublesome,  although  of  little  importance,  which 
sometimes  fetter  diplomatic  relations  without  any  reason  therefor.  Thanks  to 
obligatory  arbitration.  States  could  more  easily  maintain  their  legitimate  claims, 
and  what  is  more  important  still,  could  more  easily  escape  from  the  unjustified 
demands. 

Obligatory  arbitration  would  be  of  invaluable  service  to  the  cause  of  uni- 
versal peace.  It  is  very  evident  that  the  questions  of  the  second  class,  to  which 
alone  this  method  is  applicable,  very  rarely  form  a  basis  for  war.  Nevertheless, 
frequent  disputes  between  States,  even  though  with  regard  only  to  questions  of 
the  second  class,  while  not  forming  a  direct  menace  to  the  maintenance  of  peace, 
nevertheless  disturb  the  friendly  relations  between  States  and  create  an 
[11]  atmosphere  of  distrust  and  hostility  in  which  some  incident  or  other,  like  a 
chance  spark,  may  more  easily  cause  war  to  burst  forth.  Obligatory  arbitra- 
tion, resulting  in  absolving  the  interested  States  from  all  responsibility  for  any 
solution  of  the  dift'erence  existing  between  them,  seems  to  be  fitted  to  contribute 
to  the  maintenance  of  friendly  relations,  and  in  that  way  to  facilitate  the  peaceful 
settlement  of  the  most  serious  conflicts  which  may  arise  within  the  field  of  their 
most  important  mutual  interests. 

In  thus  recognizing  the  great  importance  of  obligatory  arbitration  it  is  above 
all  indispensable  to  set  forth  accurately  the  sphere  of  its  application;  we  must 
indicate  in  what  cases  obligatory  arbitration  is  applicable. 

The  grounds  of  international  disputes  are  very  numerous  and  infinitely 
varied;  nevertheless,  whatever  may  be  the  subject  of  dispute,  demands  made  by 
any  State  whatever  upon  another  State  can  be  listed  in  the  following  categories : 

1.  One  State  demands  of  another  material  indemnity  for  damages  and  losses 
caused  to  it  or  to  its  nationals  by  the  acts  of  the  defendant  State  or  its  nationals, 
which  the  former  State  deems  contrary  to  law. 

2.  A  State  demands  that  another  shall  or  shall  not  exercise  certain  given 
attributes  of  the  sovereign  Power,  shall  or  shall  not  perform  certain  specified  acts 
which  do  not  concern  its  material  interests. 

So  far  as  disputes  of  the  first  category  are  concerned,  the  application  of 
obligatory  arbitration  is  always  possible  and  desirable.  Conflicts  of  this  nature 
relate  to  questions  of  law;  they  do  not  concern  the  national  honor  of  States  or 
the  vital  interests  thereof,  it  being  understood  that  a  State  whose  national  honor 
or  vital  interests  had  been  attacked  would  not  of  course  limit  itself,  and  could  not 
limit  itself,  to  demanding  material  indemnity  for  damages  and  losses  suffered  by 


810  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

it.  War,  which  is  always  a  highly  regrettable  thing,  would  lose  its  significance 
and  would  have  no  moral  justification  if  it  were  undertaken  for  a  dispute  arising 
in  regard  to  facts  of  little  real  importance,  such  as  accounts  to  be  settled  for 
material  damages  caused  to  one  State  by  acts  committed  by  another,  and  which 
the  former  did  not  consider  in  accordance  with  law.  But  the  more  impossible 
war  becomes  in  such  cases,  the  more  indispensable  it  is  to  recommend  obligatory 
arbitration  as  the  most  effective  means  of  action  for  a  peaceful  solution  of  dis- 
putes of  this  character. 

The  history  of  international  relations  proves  beyond  doubt  that  in  the  great 
majority  of  cases  claims  for  indemnity  for  damages  suffered  have  actually  been 
the  subject  of  arbitrations.  The  bases  of  these  demands  vary  a  great  deal.  We 
mention,  for  example,  the  violation  of  neutral  duties,^  violation  of  the  rights  of 
neutral  States,^  the  illegal  arrest  of  a  foreign  subject,^  losses  caused  to  a  foreign 
national  through  the  fault  of  a  State,*  seizure  of  private  property  of  a  belligerent 
upon  land,°  illegal  seizure  of  vessels,®  violation  of  the  right  of  fishery.'^ 

In  general,  whatever  may  be  the  bases  or  circumstances  of  the  dispute,  St."tes 
cannot  find  any  difficulty  in  submitting  it  to  arbitration  if  it  deals  with  an  indem- 
nity for  damages  and  losses. 

It  would  seem  therefore  that  the  Conference  should  follow  the  same  path, 
by  declaring  arbitration  obligatory  for  the  examination  of  disputes  of  the  first 
class.  It  goes  without  saying  that  in  exceptional  cases  where  the  financial  question 
involved  is  of  a  very  important  character  from  the  point  of  view  of  the  interests 
of  the  State;  for  example,  in  case  it  concerned  the  bankruptcy  of  a  State,  each 
Power,  invoking  national  honor  or  vital  interests,  may  decline  to  resort  to  arbi- 
tration as  a  means  of  settling  the  difficulty. 

It  seems  that  obligatory  arbitration  could  not  and  should  not  be  applied  to 
disputes  of  the  second  class,  which  are  much  more  important  and  threatening  to 
the  general  peace.  In  this  category  are  included  disputes  of  all  kinds  arising  in 
connection  with  political  treaties  which  concern  the  vital  interests  and  national 
honor  of  States.  Obligatory  arbitration  in  these  cases  would  tie  the  hands  of 
the  interested  Power,  and  reduce  it  to  a  passive  state  when  dealing  with  ques- 
[  12]  tions  upon  which  its  security  in  large  part  depends ;  that  is  to  say,  questions 
of  which  none  but  the  sovereign  Power  can  be  the  judge.  In  introducing 
international  arbitration  into  the  international  life  of  States  we  must  proceed  with 
extreme  care  in  order  not  to  extend  unreasonably  its  sphere  of  application,  so  as 
to  shake  the  confidence  which  may  he  inspired  therein,  or  discredit  arbitration  in 
the  eyes  of  Governments  and  peoples. 

We  must  not  lose  sight  of  the  fact  that  each  State,  and  above  all  each  great 
Power,  would  prefer  to  propose  the  abrogation  of  the  treaty  making  arbitration 
obligatory,  rather  than  to  submit  to  it  questions  which  absolutely  require  that  the 
decision  thereof  shall  be  made  by  the  sovereign  Power  acting  freely  and  without 
restriction.     In  all  cases,  in  the  interests  of  a  greater  development  of  the  institu- 

1  The  case  of  the  General  Armstrong  (1881)  ;  the  case  of  the  Alabama  (1872). 

2  Blockade  of  Portendik  (1843),  etc. 

3  The  case  of  Captain  White  (1864)  ;  the  case  of  Dundonald  (1873),  etc. 
*Butterfield  case  (1888)  ;  dispute  between  Mexico  and  the  United  States  (1872),  etc. 
^  Case  of  the  Macedonian. 

^  Seizure  of  the  vessels  Velos  Mariana,  Victoria,  and  Vigie  (1852)  ;  case  of  the  Phare 
(1879),  and  others. 

^  Cases  of  fisheries  of  Newfoundland  (1877),  etc. 


ANNEXES  811 

tion  of  arbitration,  the  Conference  should  limit  its  application  to  a  specified 
number  of  legal  questions  arising  from  the  interpretation  of  existing  treaties  of 
no  political  significance.  These  treaties  should  be  specifically  noted  in  advance  by 
the  Conference,  and  their  enumeration  can  be  completed  in  time  as  the  theory, 
and  above  all  the  practice,  of  international  law  may  indicate. 

Among  the  treaties  the  interpretation  of  which  should  be  submitted  entirely 
and  unconditionally  to  obligatory  arbitration,  we  must  note  first  of  all  that  exten- 
sive group  of  treaties  of  a  world-wide  character  which  have  formed  a  system  of 
international  relationships  —  international  unions  —  to  serve  interests  which  are 
also  international.  Such,  for  example,  are  conventions  regarding  postal  and 
telegraph  unions,  international  protection  of  literary  property,  etc.  In  time,  in 
proportion  to  the  increasing  means  of  intercommunication  between  States,  a  great 
number  of  their  moral  and  material  interests  will  lose  their  exclusively  national 
character,  and  will  be  raised  to  the  heights  of  interests  of  the  whole  international 
community.  To  provide  for  these  interests  by  the  efforts  and  with  the  means  of 
a  single  State  is  an  impossible  work.  And  that  is  why  each  year  adds  to  the  num- 
ber of  treaties  of  a  world-wide  character,  uniting  many  States  and  determining 
the  ways  and  means  for  the  common  protection  of  common  interests. 

Since  other  treaties,  as  a  general  rule,  are  only  artificial  settlements  of  oppos- 
ing interests,  treaties  of  a  universal  character  always  express  necessarily  the 
agreement  upon  common  and  identic  interests.  That  is  the  reason  that  within  the 
scope  of  these  treaties  serious  disputes  incapable  of  settlement,  or  conflicts  of  a 
national  character  in  which  the  interests  of  one  are  absolutely  opposed  to  that  of 
another,  never  arise  and  cannot  arise.  So  far  as  momentary  misunderstandings 
are  concerned  —  concerning  their  interpretation,  each  State  will  willingly  confide 
the  solution  to  an  arbitral  tribunal,  it  being  understood  that  all  the  Powers  have 
an  equal  interest  in  maintaining  the  treaties  in  question,  which  serve  as  bases  for 
extensive  and  complex  questions  of  international  institutions  and  regulations 
which  are  the  only  means  of  serving  vital  and  permanent  needs. 

It  should  be  noticed  that  the  first  attempt  to  introduce  obligatory  arbitration 
into  international  practice  was  in  fact  made  in  a  treaty  of  a  universal  character, 
that  relating  to  the  Postal  Union  of  1874;  Article  16  of  this  treaty  establishes 
obligatory  arbitration  for  the  solution  of  all  the  differences  with  reference  to  the 
interpretation  and  application  of  the  treaty  in  question. 

The  Hague  Conference  would  seem  therefore  to  be  perfectly  justified  in 
extending  the  provisions  of  Article  16  of  the  Treaty  of  Berne  to  all  treaties  of  a 
universal  character  which  are  entirely  analogous  to  this  one. 

In  the  category  of  treaties  of  a  world-wide  character  susceptible  of  sub- 
mission to  obligatory  arbitration,  the  treaties  contained  in  the  following  two 
subdivisions  may  be  included : 

1.  Treaties  concerning  international  protection  of  the  great  arteries  of  world- 
wide intercourse,  postal,  telegraph,  railroad  conventions ;  conventions  for  the  pro- 
tection of  submarine  cables,  regulations  to  prevent  the  collision  of  vessels  on 
the  high  seas,  conventions  regarding  the  navigation  of  international  rivers  and  in- 
teroceanic  canals. 

2.  Treaties  providing  for  the  international  protection  of  intellectual  and 
moral  interests,  whether  of  particular  States,  or,  in  general,  of  the  whole  in- 
ternational community.  To  this  subdivision  belong  conventions  regarding  the 
protection  of  literary,  artistic  and  musical  property,  conventions   for  the  pro- 


812  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

tection  of  industrial  property  (trade-marks,  patents),  conventions  concerning  the 
use  of  weights  and  measures,  conventions  concerning  sanitation,  veterinary  surg- 
ery, and  measures  to  be  taken  to  prevent  phylloxera. 

Besides  treaties  of  a  world-wide  character,  arbitration  could  also  be  ap- 
[13]  plied  to  the  solution  of  differences  arising  from  the  interpretation  and  ap- 
plication of  treaties  concerning  particular  fields  of  private  international  law, 
civil  and  criminal. 

It  must  be  noted,  however,  that  the  most  important  questions  of  interna- 
tional law  are  actually  decided  by  the  particular  legislation  of  each  State. 

Because  of  the  difficulties  of  this  situation,  resulting  in  a  great  lack  of 
definition  of  the  mutual  rights  and  duties  of  individuals  in  international  inter- 
course, the  question  of  a  code  of  private  international  law  has  been  considered. 
So  long  as  this  question  is  not  definitely  decided,  either  by  the  conclusion  of 
separate  treaties  between  States,  or  by  the  conclusion  of  a  treaty  of  a  world-wide 
character,  it  would  be  more  prudent  not  to  attempt  obligatory  arbitration  except 
in  questions  relating  to  the  right  of  succession  of  property,  which  is  already,  to 
a  certain  degree,  sufficiently  regulated  by  international  treaties. 

So  far  as  questions  of  international  criminal  law  which  arise  with  regard 
to  the  interpretation  of  treaties  concerning  cooperation  between  States  for  the 
administration  of  justice  are  concerned,  it  would  seem  that  these  questions,  being 
exclusively  of  a  legal  character,  might  be  decided  by  obligatory  arbitration,  this 
appearing  to  be  equally  possible  and  desirable  for  all  States. 

Finally,  with  a  view  to  preventing  those  disputes  and  misunderstandings 
which  are  so  frequent  among  States  with  regard  to  the  delimitation  of  boundaries, 
it  would  also  seem  most  opportune  to  confide  to  obligatory  arbitration  the  in- 
terpretation of  so-called  treaties  of  delimitation,  so  far  as  these  are  of  a  technical 
and  non-political  character. 

Such  are  the  limits  within  which  it  would  be  possible  and  desirable  to  de- 
termine the  sphere  of  action  of  obligatory  arbitration. 

We  may  permit  ourselves  to  believe  that  in  time  it  will  become  possible  to 
extend  obligatory  arbitration  to  cases  not  actually  provided  for  in  advance ;  but 
€ven  within  the  limits  above  indicated,  this  means  of  action  will  be  a  great  aid 
to  the  success  of  the  great  principles  of  law  and  justice  in  the  international  field. 

The  Peace  Conference,  by  recognizing  as  far  as  possible  the  use  of  arbitration 
as  obligatory,  will  by  that  fact  approach  the  goal  which  was  set  up  before  the 
Governments  of  the  Great  Powers  at  Aix-la-Chapelle  in  1818.  It  will  set  an 
example  of  justice,  concord,  and  moderation;  it  will  sanction  the  efforts  of  all 
the  Governments  for  the  protection  of  peaceful  arts,  for  the  development  of  the 
eternal  prosperity  of  States  and  for  the  reestablishment  of  the  high  ideals  of  re- 
ligion and  morality. 


ANNEXES  813 

Annex  2,  A 

[14] 

DECLARATION  OF  SIR  JULIAN  PAUNCEFOTE 

(Meeting  of  May  26) 

Mr.  President:  Permit  me  to  ask,  before  going  further  in  the  matter, 
whether  it  would  not  be  useful  and  opportune  to  sound  the  Commission  upon  the 
subject  of  the  most  important  question  —  as  I  believe  —  which  you  mentioned 
in  your  address,  the  establishment  of  an  international  Permanent  Court  of  Arbi- 
tration. 

Many  codes  of  arbitration  and  rufes  of  procedure  have  been  made,  hut  pro- 
cedure has  been  regulated  up  to  the  present  by  the  arbitrators  and  by  special 
or  general  treaties. 

Now,  it  seems  to  me  that  new  codes  and  rules  of  arbitration,  whatever  may 
be  their  merit,  do  not  advance  very  much  the  great  cause  which  brings  us  here. 

If  we  desire  to  take  a  step  in  advance,  I  believe  that  it  is  absolutely  neces- 
sary to  organize  a  permanent  international  tribunal  which  can  assemble  instantly 
at  the  request  of  contesting  nations.  This  idea  established,  I  believe  that  we 
shall  not  have  very  much  difficulty  in  coming  to  an  understanding  upon  the 
details.  The  necessity  for  such  a  tribunal  and  the  advantage  which  it  would 
offer,  as  well  as  the  encouragement  and  even  impetus  which  it  would  give  to 
the  cause  of  arbitration,  have  been  set  forth  with  vigor  and  clearness  —  and  equal 
eloquence  —  by  our  distinguished  colleague,  Mr.  Descamps,  in  his  interesting 
"  Essay  upon  arbitration,"  an  extract  from  which  appears  among  the  acts  and 
documents  so  graciously  furnished  the  Conference  by  the  Netherland  Govern- 
ment. There  is  nothing  left  for  me  to  say  upon  this  subject,  therefore,  and  I 
would  be  grateful,  Mr.  President,  if,  before  proceeding  further,  you  would  con- 
sent to  gather  the  ideas  and  sentiments  of  the  Commission  upon  the  proposition 
which  I  have  the  honor  to  submit  to  you  concerning  the  establishment  of  an  inter- 
national Permanent  Court  of  Arbitration. 


Annex  2,  B 

[15] 

PERMANENT  COURT  OF  ARBITRATION 
Proposition  of  Sir  Julian  Pauncefote 

1 

With  a  view  to  facilitate  immediate  recourse  to  arbitration  by  States  which 
may  fail  to  adjust  by  diplomatic  negotiations  differences  arising  between  them, 
the  "signatory  Powers  agree  to  organize  in  manner  hereinafter  mentioned,  a 
permanent  "  tribunal  of  international  arbitration "  which  shall  be  accessible  at 


814  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

all  times  and  which  shall  be  governed  by  the  code  of  arbitration  provided  by  this 
Convention,  so  far  as  the  same  may  be  applicable  and  consistent  with  any  special 
stipulations  agreed  to  between  the  contesting  parties. 

2 

For  that  purpose  a  permanent  central  office  shall  be  established  at  ...  , 
where  the  records  of  the  tribunal  shall  be  preserved  and  its  official  business  shall 
be  transacted. 

A  permanent  secretary,  an  archivist  and  a  suitable  staff  shall  be  appointed 
who  shall  reside  on  the  spot.  This  office  shall  be  the  medium  of  communication 
for  the  assembling  of  the  tribunal  at  the  request  of  the  contesting  parties. 

3 

Each  of  the  signatory  Powers  shall  tfansmit  to  the  others  the  names  of  two 
persons  of  its  nationality  who  shall  be  recognized  in  their  own  country  as  jurists 
or  publicists  of  high  character  for  learning  and  integrity  and  who  shall  be  willing 
and  qualified  in  all  respects  to  act  as  arbitrators.  The  persons  so  nominated 
shall  be  members  of  the  tribunal  and  a  list  of  their  names  shall  be  recorded  in 
the  centaal  office.  In  the  event  of  any  vacancy  occurring  in  the  said  list  from 
death,  retirement  or  any  other  cause  whatever,  such  vacancy  shall  be  filled  up 
in  the  manner  hereinbefore  provided,  with  respect  to  the  original  appointment. 

4 
Any  of  the  signatory  Powers  desiring  to  have  recourse  to  the  tribunal  for 
[16]  the  peaceful  settlement  of  differences  which  may  arise  between  them,  shall 
notify  such  desire  to  the  secretary  of  the  central  office,  who  shall  there- 
upon furnish  sueh  Powers  with  a  list  of  the  members  of  the  tribunal  from  which 
they  shall  select  such  number  of  arbitrators  as  may  be  stipulated  for  in  the 
arbitration  agreement.  They  may  besides,  if  they  think  fit,  adjoin  to  them 
any  other  person,  although  his  name  shall  not  appear  on  the  list.  The  persons  so 
selected  shall  constitute  the  tribunal  for  the  purposes  of  such  arbitration  and  shall 
assemble  at  such  date  as  may  be  fixed  by  the  litigants. 

The  tribunal  shall  ordinarily  hold  its  sessions  at  ...  ,  but  it  shall  have 
power  to  fix  its  place  of  session  elsewhere  and  to  change  the  same  from  time  to 
time  as  circumstances  and  its  own  convenience  or  that  of  the  litigants  may  sug- 
gest. 

5 
Any  Power,  although  not  a  signatory  Power,  may  have  recourse  to  the 
tribunal  on  such  terms  as  shall  be  prescribed  by  the  regulations. 

6 

The  Government  of  ...  is  charged  by  the  signatory  Powers  to  establish 
on  their  behalf  as  soon  as  possible  after  the  conclusion  of  this  Convention  a  Per- 
manent Council  of  Administration  at  ...  to  be  composed  of  five  members 
and  a  secretary. 

The  Council  shall  organize  and  establish  the  central  office,  which  shall 
be  under  its  control  and  direction.  It  shall  make  such  rules  and  regulations 
from  time  to  time  as  may  be  necessary  for  the  proper  discharge  of  the  functions 
of  the  office.  It  shall  dispose  of  all  questions  which  may  arise  in  relation  to  the 
working  of  the  tribunal  or  which  may  be  referred  to  it  by  the  central  office.  It 
shall  have  absolute  power  as  regards  the  appointment,  suspension  or  dismissal 


ANNEXES  815 

of  all  employees  and  shall  fix  their  salaries  and  control  the  general  expenditure. 
The  Council  shall  elect  its  president  who  shall  have  a  casting  vote.     Three 

members  shall  form  a  quorum.     The  decisions  of  the  Council  shall  be  governed 

by  a  majority  of  votes. 

The  remuneration  of  the  members  shall  be  fixed   from  time  to  time  by 

accord  between  the  signatory  Powers. 

7 

The  signatory  Powers  agree  to  share  among  them  the  expenses  attending 
the  institution  and  maintenance  of  the  central  office  and  of  the  Council  of  Admin- 
istration. 

The  expenses  of  and  incident  to  every  arbitration,  including  the  remuneration 
of  the  arbiters,  shall  be  equally  borne  by  the  contesting  Powers. 


Annex  3,  A 

[17] 

RUSSIAN  PROPOSAL 

(a)  Articles  Which  Might  Replace  Article  13 

Project  for  an  arbitral  tribunal 

Article  1 

With  a  view  to  unifying  international  arbitral  practice  as  much  as  possible, 
the  contracting  Powers  have  agreed  to  establish  for  a  period  of  .  .  .  years,  an 
arbitral  tribunal,  to  which  the  cases  of  obligatory  arbitration  enumerated  in 
Article  10  will  be  submitted,  unless  the  interested  Powers  agree  upon  the  estab- 
lishment of  a  special  arbitral  tribunal  for  the  settlement  of  the  dispute  which  has 
arisen  between  them. 

Litigant  Powers  may  also  resort  to  the  above-indicated  tribunal  in  all  cases 
of  voluntary  arbitration  if  a  special  agreement  concerning  the  same  is  made  be- 
tween them. 

It  is  of  course  understood  that  all  Powers,  not  excepting  those  who  are  not 
contracting  Powers  nor  those  who  have  made  reservations,  can  submit  their 
differences  to  this  tribunal  by  addressing  the  Permanent  Bureau  provided  for 
in  Article    ...  of  Appendix  A. 

Article  2 

The  organization  of  the  arbitral  tribunal  is  given  in  Appendix  A  of  the 
present  article. 

The  organization  of  arbitral  tribunals  established  by  special  agreements  be- 
tween litigant  Powers,  as  well  as  the  rules  of  procedure  to  be  followed  during 
the  investigation  of  the  dispute  and  the  rendering  of  the  arbitral  award,  are 
set  forth  in  Appendix  B  (Arbitral  code). 

The  provisions  contained  in  this  latter  Appendix  may  be  modified  by  a 
special  agreement  between  the  States  which  resort  to  arbitration. 


816  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

Annex  3,  B 

[18] 

APPENDIX  A,  MENTIONED  IN  THE  ADDITIONAL  ARTICLE  2  OF 

THE  RUSSIAN  PROPOSAL 

Constitution  of  an  Arbitral  Tribunal 

In  the  absence  of  a  special  compromis  the  arbitral  tribunal  provided  for  in 
Article  13  shall  be  formed  as  follows: 

1.  The  contracting  parties  establish  a  permanent  tribunal  for  the  solution 
of  the  international  disputes  which  are  referred  to  it  by  the  Powers  by  virtue 
of  Article  13  of  the  present  Convention. 

2.  The  Conference  shall  designate  for  the  period  which  will  elapse  before 
the  meeting  of  another  Conference,  five  Powers,  each  one  of  which,  in  case  of  a 
request  for  arbitration,  shall  name  a  judge,  either  from  its  own  nationals  or  from 
others. 

The  judges  thus  named  form  the  arbitral  tribunal  with  power  to  consider 
the  case  which  has  arisen. 

3.  If  one  or  more  Powers  among  those  in  litigation  are  not  represented 
upon  the  arbitral  tribunal,  by  virtue  of  the  preceding  article,  each  of  the  two 
parties  in  litigation  shall  have  the  right  to  be  represented  thereon  by  a  person 
of  its  own  choice  acting  as  judge  and  having  the  same  rights  as  the  other  mem- 
bers of  the  tribunal. 

4.  The  tribunal  shall  choose  its  president  from  among  its  members  and  he, 
in  case  of  equal  division  of  votes,  shall  have  the  deciding  vote. 

5.  A  Permanent  Bureau  of  arbitration  shall  be  established  by  the  five  Powers 
who  are  designated  by  virtue  of  the  present  act  to  create  the  arbitral  tribunal. 
They  shall  draft  the  rules  governing  this  Bureau,  appoint  employees  thereof,  pro- 
vide for  their  successors  in  case  of  necessity,  and  shall  fix  their  salaries.  This 
Bureau,  the  office  of  which  shall  be  at  The  Hague,  shall  consist  of  a  secretary 
general,  an  assistant  secretary,  a  secretary  to  act  as  archivist,  as  well  as  the  rest 
of  the  personnel  who  shall  be  appointed  by  the  secretary  general. 

6.  The  expenses  of  maintaining  this  Bureau  shall  be  divided  among  the 
States  in  the  proportions  established  for  the  International  Postal  Bureau. 

7.  The  Bureau  shall  make  an  annual  report  of  its  business  to  the  five  Powers 
which  appoint  it,  and  the  latter  shall  transmit  this  report  to  the  other  Powers. 

8.  The  Powers  between  which  a  dispute  has  arisen  shall  address  the  Bureau 
and  furnish  it  with  the  necessary  documents.  The  Bureau  shall  advise  the  five 
Powers  above  mentioned  and  they  shall  immediately  create  the  tribunal.  The 
tribunal  shall  meet  ordinarily  at  The  Hague;  it  may  also  meet  in  another  city,  if 
an  agreement  to  this  effect  is  reached  by  the  interested  States. 

9.  During  the  work  of  the  tribunal  the  Bureau  shall  furnish  the  secretarial 
staff.  It  shall  follow  the  tribunal  in  case  of  change  of  meeting-place.  The 
archives  of  the  international  tribunal  shall  be  deposited  with  the  Bureau, 

10.  Procedure  before  the  tribunal  above  mentioned  shall  be  governed  by  the 
provisions  of  the  arbitral  code. 


ANNEXES  817 

Annex  4 
[19] 

AMENDMENT  TO  THE  RUSSIAN  DRAFT  REGARDING  MEDIATION 
AND  ARBITRATION  SUBMITTED  BY  HIS  EXCELLENCY 

COUNT  NIGRA 

With  the  object  of  preventing  or  putting  an  end  to  international  conflicts, 
the  Peace  Conference,  assembled  at  The  Hague,  has  resolved  to  submit  to  the 
Governments  there  represented  the  following  articles  which  are  intended  to  be 
made  an  international  agreement. 

Article  1 

In  case  a  conflict  between  two  or  more  Powers  is  imminent,  and  after  every 
attempt  at  reconciliation  by  means  of  indirect  negotiations  has  failed,  the  litigant 
parties  are  obliged  to  resort  to  mediation  or  arbitration  in  the  cases  indicated 
in  the  present  act. 

Article  2 

In  all  other  cases  mediation  or  arbitration  are  recommended  by  the  signatory 
Powers;  but  remain  voluntary. 

Article  3 

In  any  case,  and  even  during  hostilities,  each  one  of  the  Powers  signatory 
to  the  present  act,  and  not  involved  in  the  dispute,  has  the  right  to  offer  to  the 
contending  Powers  its  good  ofiices  and  mediation,  or  to  propose  to  them  to 
resort  to  the  mediation  of  another  Power,  which  is  also  neutral,  or  to  arbitration. 

This  offer  or  this  proposal  cannot  be  considered  by  one  or  the  other  of  the 
litigant  parties  as  an  unfriendly  act,  even  in  case  mediation  and  arbitration,  not 
being  obligatory,  are  rejected. 

Article  4 

A  request  for,  or  offer  of,  mediation  has  priority  over  arbitration. 

But  arbitration  can  or  should  be  proposed  according  to  the  circumstances, 
not  only  when  there  is  no  demand  for  or  offer  of  mediation,  but  also  when  media- 
tion would  have  been  rejected  or  would  not  have  brought  about  reconciliation. 

Article  5 

A  proposal  for  mediation  or  arbitration,  so  long  as  it  is  not  formally  accepted 
by  all  the  litigant  parties,  cannot,  except  where  there  is  a  contrary  agreement, 
interrupt,  delay,  or  hinder  mobilization  or  other  preparatory  measures,  nor 
military  operations  then  taking  place. 

Article  6 

Recourse  to  mediation  or  arbitration  according  to  Article  1  is  obligatory. 

(1)    

(2) 


818  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

Annex  5 

[20] 

GENERAL  SURVEY  OF  THE  CLAUSES  OF  MEDIATION  AND  ARBI- 
TRATION AFFECTING  THE  POWERS  REPRESENTED  AT 
THE  CONFERENCE 

It  is  important  to  distinguish  provisions  having  a  general  character,  that 
is,  common  to  all  the  Powers  or  to  a  considerable  group  of  them,  from  those 
having  the  character  of  special  conventional  law  between  the  States. 

Section  1. —  Provisions  of  a  General  Character 

The  principal  provisions  to  be  noticed  in  this  class  are  the  following: 

1.  General  vceu  concerning  recourse  to  the  good  offices  of  a  friendly  Power 
contained  in  protocol  No.  23  of  the  Congress  of  1856. 

This  voeu  was  expressed  in  the  following  circumstances : 

The  Earl  of  Clarendon  having  asked  permission  to  lay  before  the  Congress 
a  proposition  which  it  appears  to  him  ought  to  be  favorably  received,  states  that 
the  calamities  of  war  are  still  too  present  to  every  mind  not  to  make  it  desirable 
to  seek  out  every  expedient  calculated  to  prevent  their  return ;  that  a  stipulation 
had  been  inserted  in  Article  8  of  the  treaty  of  peace,  recommending  that  in  case 
of  difference  between  the  Porte  and  one  or  more  of  the  other  signing  Powers, 
recourse  should  be  had  to  the  mediation  of  a  friendly  State  before  resorting  to 
force. 

The  first  plenipotentiary  of  Great  Britain  conceives  that  this  happy  innova- 
tion might  receive  a  more  general  application,  and  thus  become  a  barrier  against 
conflicts,  which  frequently  break  forth  only  because  it  is  not  always  possible  to 
enter  into  explanation  and  to  come  to  an  understanding. 

He  proposes,  therefore,  to  agree  upon  a  legislation  calculated  to  aflford  for 
the  future  to  the  maintenance  of  peace  that  chance  of  duration,  without  prej- 
udice, however,  to  the  independence  of  Governments. 

Count  Walewski  declares  himself  authorized  to  support  the  idea  expressed 
by  the  first  plenipotentiary  of  Great  Britain;  he  gives  the  assurance  that  the 
plenipotentiaries  of  France  are  wholly  disposed  to  concur  in  the  insertion  in 
the  protocol  of  a  vocu,  which,  being  fully  in  accordance  with  the  tendencies  of  our 
epoch,  would  not  in  any  way  fetter  the  liberty  of  action  of  Governments. 

Count  Buol  would  not  hesitate  to  concur  in  the  opinion  of  the  plenipoten- 
tiaries of  Great  Britain  and  of  France,  if  the  resolution  of  Congress  is  to  have 
the  form  indicated  by  Count  Walewski,  but  he  could  not  take  in  the  name  of 
his  Court,  an  absolute  engagement  calculated  to  limit  the  independence  of  the 
Austrian  Cabinet. 

The  Earl  of  Clarendon  replies,  that  each  Power  is  and  will  be  the  sole 
judge  of  the  requirements  of  its  honor  and  of  its  interests;  that  it  is  by  no  means 
his  intention  to  restrict  the  authority  of  the  Governments,  but  only  to  afford 
them  the  opportunity  of  not  having  recourse  to  arms,  whenever  differences  may 
be  adjusted  by  other  means. 


ANNEXES  819 

Baron  Manteuffel  gives  the  assurance  that  the  King,  his  august  master, 
completely  shares  the  ideas  set  forth  by  the  Earl  of  Clarendon  ;  that  he  there- 
fore, considers  himself  authorized  to  adhere  to  them,  and  to  give  them  the  utmost 
development  which  they  admit  of. 

Count  Orloff,  while  admitting  the  wisdom  of  the  proposal  made  to  the 
Congress,  considers  that  he  must  refer  to  his  Court  respecting  it,  before  he 
expresses  the  opinion  of  the  plenipotentiaries  of  Russia.  .  .  . 

Count  Walewski  adds,  that  there  is  no  question  of  stipulating  for  a  right 

or  of  taking  an  engagement;  that  the  wish  expressed  by  the  Congress  cannot 

in  any  case  oppose  limits  to  the  liberty  of  judgment,  of  which  no  Power 

[21]   can  divest  itself  in  questions  affecting  its  dignity;  that  there  is  therefore 

no  inconvenience  in  attaching  a  general  character  to  the  idea  entertained 

by  the  Earl  of  Clarendon,  and  in  giving  to  it  the  most  extended  application.  .  .  . 

Count  BuoL  approves  the  proposition  in  the  shape  that  Lord  Clarendon 
has  presented  it,  as  having  a  humane  object ;  but  he  could  not  assent  to  it,  if  it 
were  wished  to  give  to  it  too  great  an  extension,  or  to  deduce  from  it  con- 
sequences favorable  to  de  facto  Governments,  and  to  doctrines  which  he  cannot 
admit. 

He  desires  besides  that  the  Conference,  at  the  moment  of  terminating  its 
labors,  should  not  find  itself  compelled  to  discuss  irritating  questions,  calculated 
to  disturb  the  perfect  harmony  which  has  not  ceased  to  prevail  among  the  pleni- 
potentiaries. .  .  . 

Whereupon,  the  plenipotentiaries  do  not  hesitate  to  express,  in  the  name 
of  their  Governments,  the  7'(ru  that  States,  between  which  any  serious  misun- 
derstanding may  arise,  should,  before  appealing  to  arms,  have  recourse,  as  far 
as  circumstances  might  allow,  to  the  good  offices  of  a  friendly  Power. 

The  plenipotentiaries  hope  that  the  Governments  not  represented  at  the 
Congress  will  unite  in  the  sentiment  which  has  inspired  the  voeu  recorded  in  the 
present  protocol. 

2.  Mediation  in  case  of  differences  threatening  the  relations  between  the 
Sublime  Porte  and  the  other  Powers  signatory  to  the  Treaty  of  Paris  of  1856. 

Treaty  of  March  30,  1856.  Article  8:  If  there  should  arise  between  the 
Sublime  Porte  and  one  or  more  of  the  other  signatory  Powers  a  difference 
threatening  the  maintenance  of  their  relations,  the  Sublime  Porte  or  each  of  the 
Powers,  before  having  recourse  to  the  employment  of  force,  will  put  the  other 
contracting  Parties  in  a  position  to  prevent  this  extremity  through  their  media- 
tion. 

3.  Good  offices  to  limit  the  theater  of  war  by  neutralising  territories  com- 
prised in  the  basin  of  the  Kongo  as  defined  by  treaty. 

General  Act  of  the  Conference  of  Berlin,  February  26,  1885.  Article  11: 
In  the  case  where  a  Power  exercising  rights  of  sovereignty  or  of  protectorate  in 
the  countries  mentioned  in  Article  1  and  placed  under  the  regime  of  commercial 
liberty  may  be  involved  in  a  war,  the  high  signatory  Parties  of  the  present  act, 
and  those  who  shall  adhere  to  it  subsequently,  engage  themselves  to  lend  their 
good  offices  to  the  end  that  the  territories  belonging  to  this  Power  and  comprised 
in  the  conventional  zone  of  commercial  liberty  may  be,  with  the  common  consent 


820  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

of  this  Power  and  of  the  other  party  or  parties  belligerent,  placed  for  the  dura- 
tion of  the  war  under  the  regime  of  neutrality  and  considered  as  belonging  to 
a  non-beUigerent  State;  the  belligerent  parties  may  renounce,  thenceforth,  the 
extension  of  hostilities  to  the  territories  thus  neutralized,  as  also  their  use  as  a 
base  for  the  operations  of  war. 

4.  Obligatory  mediation  and  voluntary  arbitration  in  case  of  serious  dis- 
agreement arising  concerning,  or  within  the  limits  of,  the  basin  of  the  Kongo  as 
defined  by  treaty. 

General  Act  of  the  Conference  of  Berlin,  February  26,  1885.  Article  12: 
In  cases  where  serious  disagreement  with  regard  to,  or  within  the  limits  of,  the 
territories  mentioned  in  Article  1  and  placed  under  the  regime  of  commercial 
liberty,  may  arise  between  the  signatory  Powers  of  the  present  act  or  Powers 
which  may  adhere  thereto  in  the  future,  these  Powers  agree  before  appealing  to 
arms,  to  resort  to  the  mediation  of  one  or  more  friendly  Powers. 

In  the  same  case  the  same  Powers  reserve  the  right  to  resort  voluntarily 
to  arbitral  procedure. 

5.  Establishment  of  an  arbitral  tribunal  by  virtue  of  the  General  Act  of  the 
Conference  of  Brussels  concerning  the  African  Slave  Trade. 

General  Act  of  the  Conference  of  Brussels,  July  2,  1890.  Article  55 :  The 
capturing  officer  and  the  authority  which  has  conducted  the  inquiry  shall  each 
appoint  an  arbitrator  within  forty-eight  hours,  and  the  arbitrators  chosen  shall 
have  twenty-four  hours  to  choose  an  umpire.  The  arbitrators  shall,  as  far  as 
possible,  be  chosen  from  among  the  diplomatic,  consular,  or  judicial  officers  of 
the  signatory  Powers.  Natives  in  the  pay  of  the  contracting  Governments  are 
formally  excluded.  The  decision  shall  be  by  a  majority  of  votes,  and  be  con- 
sidered as  final. 

If  the  Court  of  Arbitration  is  not  constituted  in  the  time  indicated,  the  pro- 
cedure in  respect  to  the  indemnity,  as  well  as  in  regard  to  damages,  shall  be  in 

accordance  with  the  provisions  of  Article  58,  paragraph  2. 
[22]  Article  56.  The  cases  shall  be  brought  with  the  least  possible  delay  be- 
fore the  tribunal  of  the  nation  whose  flag  has  been  used  by  the  accused. 
However,  the  consuls  or  any  other  authority  of  the  same  nation  as  the  accused, 
specially  commissioned  to  this  end,  may  be  authorized  by  their  Government  to  pro- 
nounce judgment  instead  of  the  tribunal. 

Article  58.  Any  decision  of  the  national  tribunal,  or  authorities  referred 
to  in  Article  56,  declaring  that  the  seized  vessel  did  not  carry  on  the  slave  trade, 
shall  be  immediately  enforced,  and  the  vessel  shall  be  at  perfect  liberty  to  con- 
tinue on  its  course. 

In  this  case,  the  captain  or  owner  of  any  vessel  that  has  been  seized  without 
legitimate  ground  of  suspicion,  or  subjected  to  annoyance,  shall  have  the  right 
of  claiming  damages,  the  amount  of  which  shall  be  fixed  by  agreement  between 
the  Governments  directly  interested,  or  by  arbitration,  and  shall  be  paid  within 
a  period  of  six  months  from  the  date  of  the  judgment  acquitting  the  captured 
vessel. 

6.  Institution  of  an  arbitral  tribunal  by  virtue  of  the  Universal  Postal  Union. 


ANNEXES  821 

Convention  of  July  4,  1891.  Article  23:  Sec.  1.  In  case  of  disagreement 
between  two  or  more  members  of  the  Union  as  to  the  interpretation  of  the 
present  Convention,  or  as  to  the  responsibility  of  an  administration  in  case  of  the 
loss  of  a  registered  article,  the  question  in  dispute  is  decided  by  arbitration. 
To  that  end,  each  of  the  administrations  concerned  chooses  another  member 
of  the  Union  not  directly  interested  in  the  matter. 

Sec.  2.  The  decision  of  the  arbitrators  is  given  by  an  absolute  majority 
of  votes. 

Sec.  3.  In  case  of  an  enuality  of  votes  the  arbitrators  choose,  with  a  view 
of  settling  the  difference,  another  administration  equally  uninterested  in  the 
question  in  dispute. 

Sec.  4.  The  stipulations  of  the  present  article  apply  equally  to  all  the  agree- 
ments concluded  by  virtue  of  the  preceding  Article  19.  (Regarding  services  in 
connection  with  letters  and  boxes  of  declared  value,  postal  money-orders,  parcel 
post,  collection  of  bills  and  drafts,  certificates  of  identity,  subscriptions  to  news- 
papers, etc.) 

7.  Establishment  of  a  voluntary  arbitration  office,  by  virtue  of  the  Interna- 
tional Union  for  the  Transportation  of  Merchandise  by  Railroad. 

Convention  of  October  14,  1890.  Article  57:  Sec,  1.  To  facilitate  and 
secure  the  execution  of  the  present  Convention,  a  central  office  of  international 
transportation  shall  be  organized,  charged  with  ...  3.  To  decide,  at  the  request 
of  the  parties,  disputes  which  may  arise  concerning  railroads. 

Article  22,  section  2,  of  the  Convention  of  July  4,  1891,  authorizes  the  In- 
ternational Bureau  of  the  Postal  Union  "  to  give  at  the  request  of  the  parties 
concerned,  an  opinion  upon  questions  in  dispute."  These  judicial  opinions  form 
a  sort  of  pre-arbitration  which  it  seemed  interesting  to  note. 

In  fulfillment  of  Article  57,  section  1,  of  the  Convention  of  October  14,  1890, 
the  Swiss  Federal  Council  published,  under  date  of  November  29,  1892,  a  set 
of  regulations  determining  the  arbitral  procedure  for  disputes  brought  before 
the  central  office  for  international  transportation. 

Section  2. —  Special  Conventional  Law 

Ger'inany 

Article  1  of  the  Anglo-German  agreement  of  July  1,  1890,  provides  that  the. 
delimitation  of  the  southern  frontier  of  "  Walfish  Bay  "  shall  be  reserved  for 
decision  by  arbitration  if  within  two  years  of  the  date  of  the  signature  of  this 
agreement  no  understanding  is  reached  between  the  two  Powers  regarding  the 
determination  of  the  said  frontier. 

Austria-Hungary 

The  Treaty  of  commerce  of  May  17,  1869,  between  Austria-Hungary  and 
Siam  concerning  a  general  clause  providing  for  arbitration  concerning  all  differ- 
ences which  may  arise  between  the  two  countries.  Article  26:  Should  any 
question  arise  between  the  high  contracting  Powers,   which  is  not  settled  by 

amicable  diplomatic  intercourse  or  correspondence,  it  is  hereby  agreed  that 
[23]  the  settlement  of  such  question  shall  be  referred  to  the  arbitration  of  a 

friendly  neutral  Power,  to  be  chosen  by  common  accord,  and  that  the  re- 


822  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

suit  of  such  arbitration  shall  be  accepted  by  the  high  contracting  Parties  as  a 
final  decision. 

Belgium 

Belgium  has  concluded  eleven  treaties  containing  arbitration  clauses. 
Six  of  these  clauses  are  general  and  cover  all  possible  differences.     The 
other  five  are  of  limited  scope. 

The  general  arbitration  clauses  are  the  following : 

1.  Belgium  and  the  Hawaiian  Islands.  Treaty  of  friendship,  commerce, 
and  navigation,  October  4,  1862..  Article  26:  If,  by  the  concurrence  of  unfor- 
tunate circumstances,  differences  between  the  contracting  Parties  become  the 
ground  for  an  interruption  of  friendly  relations,  and  if,  after  they  have  exhausted 
all  means  for  a  friendly  and  conciliatory  discussion,  the  object  of  their  mutual 
desires  is  not  reached,  arbitration  by  a  third  Power,  friendly  to  both  Parties, 
shall  be  invoked  by  common  accord,  in  order  to  prevent  by  this  means  a  com- 
plete rupture. 

2.  Belgium  and  Siam.  Treaty  of  Friendship  and  Commerce,  August  29, 
1868.  Article  24:  If  any  difference  shall  arise  between  the  two  contracting 
countries  which  may  not  be  settled  amicably  by  diplomatic  correspondence  be- 
tween the  two  Governments,  these  Governments  shall,  by  common  accord,  nom- 
inate as  arbitrator  some  third  neutral  and  friendly  Power,  and  the  result  of  the 
arbitration  shall  be  accepted  by  the  two  Parties. 

3.  Belgium  and  the  South  African  Republic.  Treaty  of  friendship,  es- 
tablishment, and  commerce,  February  3,  1876.  Article  14.  (Same  text  as  that 
of  the  treaty  with  the  Hawaiian  Islands,  supra,  No.  1.) 

4.  Belgium  and  Venezuela.  Treaty  of  friendship,  commerce,  and  naviga- 
tion, March  1,  1884.  Article  2:  If  any  difference  whatever  arises  between 
Belgium  and  Venezuela,  which  cannot  be  settled  in  a  friendly  manner,  the  two 
high  contracting  Parties  agree  to  submit  the  solution  of  the  difficulty  to  the  arbi- 
tration of  a  friendly  Power,  proposed  and  accepted  by  common  agreement. 

5.  Belgium  and  Ecuador.  Treaty  of  friendship,  commerce,  and  navigation, 
March  5,  1887.  Article  2.  (Same  text  as  that  of  the  treaty  with  Venezuela, 
supra,  No.  4.) 

6.  Belgium  and  the  Orange  Free  State.  Treaty  of  friendship,  establishment, 
and  commerce,  December  27,  1894.  Article  14.  (Same  text  as  that  of  the 
treaty  with  the  Hawaiian  Islands,  supra.  No.  1.) 

The  clauses  providing  for  limited  arbitration  are :    ■ 

1.  Belgium  and  Italy.  Treaty  of  commerce  and  navigation,  December  11, 
1882.  Article  20:  If  any  difficulty  arises  concerning  either  the  interpretation 
or  the  execution  of  the  preceding  articles,  the  two  high  contracting  Parties,  after 
having  exhausted  all  direct  means  of  reaching  an  agreement,  agree  to  resort  to 
the  decision  of  a  commission  of  arbitrators. 

This  commission  shall  be  composed  of  an  equal  number  of  arbitrators  chosen 
by  the  high  contracting  Parties  and  an  arbitrator  chosen  by  the  commission  itself. 

The  procedure  to  be  followed  shall  be  determined  by  the  arbitrators,  unless 
an  agreement  be  reached  in  regard  thereto  by  the  Belgian  and  Italian  Govern- 
ments. 


ANNEXES  823 

2.  Belgium  and  Greece.  Treaty  of  commerce  and  navigation,  May  25, 
1395.  Article  21 :  The  high  contracting  Parties  agree  to  resort  to  arbitration 
in  all  disputes  which  may  arise  from  the  interpretation  or  execution  of  the  present 
treaty. 

3.  Belgium  and  Sweden.  Treaty  of  commerce  and  navigation,  June  11, 
1895.     Article  20.     (Same  text  as  that  of  the  treaty  with  Greece,  supra,  No.  2.) 

4.  Belgium  and  Norway.  Treaty  of  commerce  and  navigation,  June  11,  1895. 
Article  20:  In  cases  involving  a  difference  between  the  two  contracting  Powers 
arising  from  the  interpretation  or  application  of  the  present  treaty,  which  can- 
not be  settled  in  a  friendly  manner  by  diplomatic  correspondence,  the  two  Powers 
agree  to  submit  the  same  to  the  decision  of  an  arbitral  tribunal,  whose  decision 
they  agree  to  respect  and  loyally  to  execute. 

The  arbitral  tribunal  shall  be  composed  of  three  members.  Each  of  the 
two  contracting  Parties  shall  designate  one,  not  chosen  from  among  its 

[24]  nationals  or  the  inhabitants  of  its  country.  These  two  arbitrators  shall 
name  a  third.     If  they  cannot  come  to  an  agreement  thereon,  the  third 

arbitrator  shall  be  named  by  a  Government  selected  by  the  two  arbitrators,  or  if 

they  fail  to  agree,  then  by  lot. 

5.  Belgium  and  Denmark.  Treaty  of  commerce  and  navigation,  June  18, 
1895.     Article  20.     (Same  text  as  that  of  the  treaty  with  Greece,  supra,  No.  2.) 

Denmark 

1.  Denmark  and  Venezuela.  Treaty  of  commerce  and  navigation,  December 
19,  1862.  Article  26:  If,  by  the  concurrence  of  unfortunate  circumstances, 
differences  between  the  two  high  contracting  Parties  cause  an  interruption  of 
friendly  relations,  and  if  after  they  have  exhausted  the  means  for  friendly  and 
conciliatory  discussion  the  object  of  their  respective  claims  is  not  completely  at- 
tained, arbitration  by  a  third  friendly  and  neutral  Power  shall  be  invoked  by 
common  agreement  before  resorting  to  awful  use  of  arms. 

An  exception  to  the  above  is  made  in  the  case  where  the  Party  which  be- 
lieves itself  injured  cannot  secure  the  consent  of  the  other  Party  to  the  choice 
of  an  arbitrator  by  common  accord,  or  in  default  of  common  agreement,  by  lot, 
within  three  months  counting  from  the  day  the  invitation  to  make  such  choice 
is  extended  to  it. 

2.  Denmark  and  Belgium.  Treaty  of  commerce  and  navigation,  June  18, 
1895.     Article  20.     (Reproduced  under  the  heading  "  Belgium.") 

Spain 

Below  are  given  the  treaties  concluded  by  Spain  in  which  the  arbitration 
•clause  has  been  inserted. 

A.  General  clauses  of  arbitration : 

1.  Spain  and  Venezuela.  Treaty  of  commerce  and  navigation,  May  20, 
1882.  Article  14:  If,  as  is  not  to  be  anticipated,  there  should  arise  between 
Venezuela  and  Spain  any  difference  which  it  shall  not  be  possible  to  settle  in 
a  friendly  manner  by  the  usual  and  ordinary  means,  the  two  high  contracting 
Parties  agree  to  submit  such  difference  to  the  arbitration  of  any  third  Power 
friendly  to  both,  which  may  have  been  proposed  and  accepted  by  mutual  consent. 

2.  Spain  and  Ecuador.     Additional  treaty  of  peace  and   friendship.   May 


824  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

23,  1888.  Article  1 :  Every  question  or  difference  which  may  arise  between 
Spain  and  Ecuador  respecting  the  interpretation  to  be  placed  on  the  existing 
treaties,  or  respecting  any  other  point  not  foreseen  in  them,  shall,  if  it  cannot 
be  settled  in  an  amicable  manner,  be  submitted  to  the  arbitration  of  a  friendly 
Power,  to  be  proposed  and  accepted  by  common  consent. 

3.  Spain  and  Colombia.  Additional  treaty  of  peace  and  friendship  to  the 
treaty  of  1881,  signed  at  Bogota,  April  28,  1894.  Article  1 :  Every  controversy 
or  difference  which  may  arise  between  Spain  and  Colombia  regarding  the  in- 
terpretation of  the  existing  treaties,  and  any  others  which  may  hereafter  be  en- 
tered into,  shall  be  decided  bv  an  arbitrator  whose  decision  shall  be  final,  and 
who  shall  be  proposed  and  accepted  by  common  agreement.  The  differences 
which  may  arise  upon  points  not  provided  for  in  the  said  treaties  or  agreements 
shall  likewise  be  submitted  for  arbitration ;  but  if  there  is  not  any  agreement 
regarding  the  adoption  of  this  procedure,  because  the  questions  affect  the 
sovereignty  of  the  nation  or  are  otherwise  incompatible  with  arbitration,  both 
Governments  will  be  bound  in  every  case  to  accept  the  mediation  or  good  offices 
of  a  friendly  Government  for  the  amicable  solution  of  all  differences. 

When  any  difference  between  Spain  and  Colombia  is  submitted  to  the 
judgment  of  an  arbitrator,  the  high  contracting  Parties  shall  establish,  by  com- 
mon accord,  the  mode  of  procedure,  terms,  and  formalities  which  the  judge 
and  the  parties  must  observe,  in  the  course  and  termination  of  the  judgment 

of  arbitration. 
[25]  4.  Spain  and  Honduras.     Treaty  of  peace  and  friendship,  November  17, 

1894.     Article  2.     (Text  identical  with  that  in  No.  2.) 

B.  Clauses  providing  for  limited  arbitration : 

1.  Spain  and  the  Netherlands.  Treaty  of  commerce  and  navigation,  June 
8,  1887.  Article  4:  The  high  contracting  Parties  declare  that,  in  the  event 
of  a  discussion  or  of  doubts  arising  about  the  execution  of  the  present  Conven- 
tion, they  will  submit  their  differences  to  the  decision  of  arbitrators,  one  being 
named  by  each  of  the  high  contracting  Parties,  and  in  case  of  disagreement 
these  shall  appoint  a  third  by  common  accord,  who  shall  be  empowered  to  decide. 

2.  Spain  and  Sweden  and  Norway.     Declarations,  June  23,  1887.     Article  2: 
Questions  which  may  arise  regarding  the  interpretation  or  execution  of  the 

treaty  of  commerce  between  Spain  and  Sweden  and  Norway,  of  March  15,  1883, 
suspended  by  the  convention  of  January  18th  last,  and  of  the  treaty  of  navigation 
between  the  same  countries  of  March  15,  1883,  or  concerning  the  consequences 
of  any  violation  of  those  treaties  whatever,  shall  be  submitted  to  arbitral  com- 
missions when  all  direct  means  of  settlement  and  friendly  discussion  between 
the  two  high  contracting  Parties  have  been  exhausted,  and  the  decisions  of  the 
commissions  shall  be  binding  upon  the  high  contracting  Parties. 

The  members  of  these  commissions  shall  be  named  by  common  agreement 
by  the  two  high  contracting  Parties,  and  in  case  an  agreement  cannot  be  ob- 
tained, each  of  them  shall  name  one  arbitrator  or  an  equal  number  of  arbitrators, 
and  those  thus  nominated  to  these  offices  shall  designate  an  additional  arbitrator 
who  shall  act  in  case  of  disagreement. 

The  high  contracting  Parties  shall  fix  the  arbitral  procedure  in  each  case, 
and  if  they  fail  to  do  so,  the  arbitral  commission  shall  determine  it  before  exer- 
cising its  powers.  In  every  case  the  high  contracting  Parties  shall  set  forth 
exactly  the  questions  or  matters  to  be  submitted  to  arbitration. 


ANNEXES  825 

France 

The  Treaty  of  friendship,  commerce,  and  navigation,  of  June  4,  1886,  be- 
tween France  and  Korea,  contains  in  Article  1,  section  2,  the  following  pro- 
vision: If  differences  arise  between  one  of  the  high  contracting  Parties  and  a 
third  Power,  the  other  high  contracting  Party  may  be  required  by  the  first  to  lend 
its  good  offices  with  a  view  to  bringing  about  a  friendly  settlement. 

Great  Britain 

The  treaties  concluded  by  Great  Britain  and  containing  the  arbitration  clauses 
are  as  follows : 

1.  Great  Britain  and  Italy.  Treaty  of  commerce  and  navigation,  June  15, 
1883.  Annexed  protocol :  Any  controversies  which  may  arise  respecting  the 
interpretation  or  the  execution  of  the  present  treaty,  or  the  consequences  of  any 
violation  thereof,  shall  be  submitted,  when  the  means  of  settling  them  directly 
by  amicable  agreement  are  exhausted,  to  the  decisions  of  commissions  of  arbi- 
tration, and  the  results  of  such  arbitrations  shall  be  binding  upon  both  Govern- 
ments. 

The  members  of  such  commissions  shall  be  selected  by  the  two  Governments 
by  common  consent,  failing  which  each  of  the  Parties  shall  nominate  an  arbi- 
trator, or  an  equal  number  of  arbitrators,  and  the  arbitrators  thus  appointed  shall 
select  an  umpire. 

The  procedure  of  the  arbitrators  shall  in  each  case  be  determined  by  the 
contracting   Parties,    failing   which   the    commission   of    arbitration   shall   itself 

be  entitled  to  determine  it  beforehand. 
[26]  2.  Great  Britain  and  Uruguay.     Treaty  of  commerce  and  navigation  of 
November  13,  1885.     Article  15.     (Text  identical  with  that  of  No.  1.) 

3.  Great  Britain  and  Greece.  Treaty  of  commerce  and  navigation  of  No- 
vember 10,  1886.     Annexed  protocol.     (Text  identical  with  that  of  No.  1.) 

4.  Great  Britain  and  Mexico.  Treaty  of  friendship,  commerce,  and  naviga- 
tion of  November  27,  1888.     Article  15.     (Text  identical  with  that  of  No.  1.) 

Greece 

1.  Greece  and  Italy.  Consular  Convention  of  November  27,  1880.  Article  32. 
(Reproduced  under  the  heading  "  Italy.") 

2.  Greece  and  Great  Britain.  Treaty  of  commerce  and  navigation,  No- 
vember 10,  1886.  Annexed  protocol.  (Reproduced  under  the  heading  "  Great 
Britain.") 

3.  Greece  and  Belgium.  Treaty  of  commerce  and  navigation.  May  25,  1895. 
Article  21.     (Reproduced  under  the  heading  "  Belgium.") 

Italy 

The  following  treaties  contain  the  clause  providing  for  arbitration  {com- 
proniis  clause)  : 

Italy  and  Uruguay.  Extradition  Convention,  April  14,  1879.  Article  16: 
The  high  contracting  Parties  agree  that  controversies  which  may  arise  respecting 
the  interpretation  or  execution  of  the  present  Convention,  or  the  consequences  of 
any  infraction  of  one  of  its  provisions,  should,  when  the  means  of  composing 
them  directly  by  amicable  agreement  shall  have  been  exhausted,  be  submitted  to  the 


826  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

decision  of  commissions  of  arbitration,  and  that  the  issue  of  such  arbitration 
should  be  binding  upon  both  Governments. 

The  members  composing  such  commissions  shall  be  chosen  by  the  two 
Governments  by  common  accord;  in  default  of  this,  each  of  the  Parties  shall 
appoint  its  own  arbitrator,  or  an  equal  number  of  arbitrators,  and  the  arbitrators 
appointed  shall  select  another. 

The  procedure  to  be  observed  in  arbitration  shall  in  each  case  be  determined 
by  the  contracting  Parties,  and  failing  this,  the  commission  of  arbitrators  shall 
consider  itself  authorized  to  determine  it  beforehand. 

2.  Italy  and  Roumania.  Consular  Convention,  August  17,  1880.  Article  32. 
(Text  identical  with  that  of  No.  1.) 

3.  Italy  and  Greece.  Consular  Convention  of  November  27,  1880.  Article  26. 
(Text  identical  with  that  of  No.  1,  except  for  the  addition  to  the  first  paragraph 
of  the  following  provision:  "It  is  understood,  that  the  jurisdiction  of  the  re- 
spective tribunals  in  matters  of  private  law  is  in  no  way  restricted  by  the  provi- 
sions of  the  present  article.") 

4.  Italy  and  Belgium.  Treaty  of  commerce,  December  11,  1882.  Article  20. 
(Text  reproduced  above  under  the  heading  "  Belgium.") 

5.  Italy  and  Montenegro.  Treaty  of  commerce,  March  28,  1883.  Article  17: 
In  case  of  disagreement  concerning  the  interpretation  or  execution  of  the  provi- 
sions contained  in  the  present  treaty,  when  direct  means  of  reaching  an  agreement 
by  friendly  arbitration  have  been  exhausted,  the  question  shall  be  submitted  to 
the  decision  of  a  commission  of  arbitrators,  and  the  result  of  this  arbitration  shall 
be  binding  upon  both  Governments. 

This  commission  shall  be  composed  of  an  equal  number  of  arbitrators  chosen 
by  each  Party,  and  the  arbitrators  thus  chosen  shall,  before  performing  any 
other  operation,  choose  a  last  arbitrator.  The  arbitral  procedure,  if  the  Parties 
do  not  determine  it  by  agreement,  shall  be  previously  decided  upon  by  the  com- 
mission of  arbitrators  itself. 

6.  Italy  and  Great  Britain.     Treaty  of  commerce,  June  15,  1883.     Annexed 
protocol.     (Text  similar  to  that  of  No.  1.) 

[27]  7.  Italy  and  the  Netherlands.  Convention  for  free  patronage,  January 
9,  1884.  Article  4:  If  any  difficulty  arises  concerning  the  interpretation 
of  this  Convention,  the  two  high  contracting  Parties  agree  to  submit  it  to  a 
commission  of  arbitrators.  This  commission  shall  be  composed  of  an  equal  num- 
ber of  arbitrators  chosen  by  the  high  contracting  Parties  and  an  arbitrator  chosen 
by  the  commission  itself. 

8.  Italy  and  Korea.  Treaty  of  friendship,  commerce,  and  navigation,  June 
26,  1884.  Article  1 :  In  case  of  differences  arising  between  one  of  the  high 
contracting  Parties  and  a  third  Power,  the  other  high  contracting  Party,  if  re- 
quested to  do  so,  shall  exert  its  good  offices  to  bring  about  an  amicable  settle- 
ment of  the  difficulty. 

9.  Italy  and  Uruguay.  Treaty  of  commerce,  September  19,  1885.  Article  27. 
(Text  identical  with  that  of  No.  1.) 

10.  Italy  and  South  African  RepubHc.  Treaty  of  commerce,  October  6, 
1886.     Article  9.     (Text  identical  with  that  of  No.  7.) 

11.  Italy  and  the  Republic  of  San  Domingo.  Treaty  of  commerce,  October 
18,  1886.     Article  28.     (Text  identical  with  that  of  No.  1.) 

12.  Italy  and  Greece.  Treaty  of  commerce,  April  1,  1889.  Annexed 
protocol.     (Text  identical  with  that  of  No.  1.) 


ANNEXES  827 

13.  Italy  and  Orange  Free  State.  Treaty  of  commerce,  January  9,  1890. 
Article  9.     (Text  identical  with  that  of  No.  1.) 

14.  Italy  and  Mexico.  Treaty  of  commerce,  April  16,  1890.  Article  27. 
(Text  similar  to  that  of  No.  1.) 

15.  Italy  and  Switzerland.  Treaty  of  commerce  of  April  19,  1892.  Article  14: 
The  high  contracting  Parties  agree,  should  occasion  arise,  to  settle  by  means  of 
arbitration  questions  concerning  the  interpretation  and  application  of  the  present 
treaty,  which  cannot  be  settled  to  their  common  satisfaction  by  the  direct  method 
of  diplomatic  negotiation. 

16.  Italy  and  Colombia.  Treaty  of  commerce,  October  27,  1892.  Article  27. 
(Text  similar  to  that  of  No.  1.) 

17.  Italy  and  Montenegro.  Extradition  Convention,  October  29,  1892. 
Article  18.     (Text  identical  with  that  of  No.  5.) 

18.  Italy  and  Paraguay.  Treaty  of  commerce,  August  22,  1893.  Article  23. 
(Text  identical  with  that  of  No.  1.) 

19.  Italy  and  Argentine  Republic.  General  Treaty  of  arbitration,  July  23, 
1898. 

His  Majesty  the  King  of  Italy  and  his  Excellency  the  President  of  the 
Argentine  Republic,  animated  by  the  desire  of  always  promoting  the  cordial  re- 
lations which  exist  between  their  States,  have  resolved  to  conclude  a  general  treaty 
of  arbitration,  and  have  named  for  this  purpose  as  the  ministers  plenipotentiary : 

Plis  Majesty  the  King  of  Italy,  his  Excellency  Count  Napoleon  Canevaro, 
Senator  of  the  Kingdom,  Vice  Admiral  in  the  Royal  Navy,  his  Minister  of  For- 
eign Affairs;  and  his  Excellency  the  President  of  the  Argentine  Republic,  his 
Excellency  Don  Enrice  B.  Moreno,  his  Envoy  Extraordinary,  etc.,  Minister 
Plenipotentiary  at  the  Court  of  the  King  of  Italy. 

Who,  having  found  their  respective  full  powers  to  be  perfectly  regular, 
have  agreed  upon  the  following: 

Article  1.  The  high  signatory  Powers  agree  to  submit  to  arbitral  decision 
all  controversies,  whatever  may  be  their  nature  and  cause,  which  may  arise  be- 
tween them,  during  the  existence  of  this  treaty,  and  which  could  not  be  settled 
in  a  friendly  manner  by  direct  negotiation. 

It  makes  no  difference  if  the  controversies  originated  in  facts  prior  to  the 
provision  of  the  present  treaty. 

Article  2.  The  high  signatory  Powers  shall  conclude  a  special  convention 
for  each  case,  in  order  to  set  forth  the  exact  matter  in  dispute,  the  extent  of 
the  powers  of  the  arbitrators,  and  any  other  matter  with  regard  to  procedure 
which  shall  be  deemed  proper. 

In  default  of  such  convention,  the  tribunal  shall  specify  according  to  the 
reciprocal  claims  of  the  Parties,  the  points  of  law  and  fact  which  should  be  de- 
cided to  close  the  controversy. 

In  all  other  regards,  in  default  of  a  special  convention,  the  following  rules 
shall  apply: 
[28]   Article  3.     The  tribunal  shall  be  composed  of  three  judges.     Each  one 
of  the  signatory  States  shall  designate  one  of  them.     The  arbitrators  thus 
chosen  shall  choose  the  third  arbitrator. 

If  they  cannot  agree  upon  a  choice,  the  third  arbitrator  shall  be  named  by 
the  head  of  a  third  State,  who  shall  be  called  upon  to  make  the  selection.  This 
State  shall  be  designated  by  the  arbitrators  already  named.  If  they  cannot 
agree  upon  the  nomination  of  a  third  arbitrator,  request  shall  be  made  of  the 


828  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

President  of  the  Swiss  Confederation  and  of  the  King  of  Sweden  and  Norway, 
alternately.  The  third  arbitrator  thus  selected  shall  be  of  right  president  of 
the  tribunal. 

The  same  person  can  never  be  named  successively  as  third  arbitrator. 

None  of  the  arbitrators  shall  be  a  citizen  of  the  signatory  States,  nor  domi- 
ciled or  resident  within  their  territories.  The  arbitrators  shall  have  no  interest 
whatever  in  the  questions  forming  the  subject  of  arbitration. 

Article  4.  When  one  arbitrator,  for  whatever  reason,  cannot  take  charge 
of  the  office  to  which  he  has  been  named,  or  if  he  cannot  continue  therein,  his 
successor  shall  be  appointed  by  the  same  procedure  as  was  followed  for  his  ap- 
pointment. 

Article  5.  In  default  of  special  agreements  between  the  Parties,  the  tri- 
bunal shall  designate  the  time  and  place  for  its  meetings  outside  the  territories 
of  the  contracting  States,  choose  the  language  to  be  used,  determine  the  methods 
of  examination,  the  formalities  and  periods  which  shall  be  prescribed  for  the 
Parties,  the  procedure  to  be  followed,  and,  in  general,  make  all  decisions  neces- 
sary for  their  operations,  as  well  as  settle  all  difficulties  concerning  procedure 
which  may  arise  during  the  course  of  the  argument. 

The  Parties  agree,  on  their  side,  to  place  at  the  disposal  of  the  arbitrators 
all  means  of  information  within  their  power. 

Article  6.  An  agent  of  each  Party  shall  be  present  at  the  sessions  and 
represent  his  Government  in  all  matters  regarding  arbitration. 

Article  7.  The  tribunal  has  power  to  decide  upon  the  regularity  of  its 
formation,  the  validity  of  the  compromis  and  the  interpretation  thereof. 

Article  8.  The  tribunal  shall  decide  according  to  the  principles  of  inter- 
national law,  unless  the  compromis  applies  special  rules  or  authorizes  the  arbi- 
trators to  decide  only  in  the  role  of  amiables  compositeurs. 

Article  9.  Unless  there  is  a  provision  expressly  to  the  contrary,  all  the 
deliberations  of  the  tribunal  shall  be  valid  when  they  are  secured  by  a  majority 
vote  of  all  of  the  arbitrators. 

Article  10.  The  award  shall  decide  finally  each  point  in  litigation.  It 
shall  be  drawn  up  in  duplicate  original  and  signed  by  all  the  arbitrators.  In 
case  one  of  them  refuses  to  sign,  the  others  shall  mention  it  and  the  award  shall 
take  effect  when  signed  by  the  absolute  majority  of  the  arbitrators.  Dissenting 
opinions  shall  not  be  inserted  in  the  decision. 

The  award  shall  be  notified  to  each  Party  through  its  representative  before 
the  tribunal. 

Article  11.  Each  Party  shall  bear  its  own  expenses  and  one-half  of  the 
general  expenses  of  the  arbitral  tribunal. 

Article  12.  The  award,  legally  rendered,  decides  the  disputes  between 
the  Parties  within  the  limits  of  its  scope. 

It  shall  contain  an  indication  of  the  period  within  which  it  must  be  executed. 
The  tribunal  which  rendered  it  shall  decide  questions  which  may  arise  concerning 
its  execution. 

Article  13.  The  decision  cannot  be  appealed  from,  and  its  execution  is 
entrusted  to  the  honor  of  the  nations  signatory  to  this  agreement. 

However,  a  demand  for  revision  will  be  allowed  before  the  same  tribunal 
which  rendered  the  award  and  before  it  is  executed : 

(1)  If  it  has  been  based  upon  a  false  or  erroneous  document; 


ANNEXES  829 

(2)  If  the  decision  was  in  whole  or  in  part  the  result  of  an  error  of  positive 
or  negative  fact  which  results  from  the  acts  or  documents  in  the  case. 

Article  14.  The  present  treaty  shall  run  for  a  period  of  ten  years  from 
the  exchange  of  ratifications.  If  it  is  not  denounced  six  months  before  its  expira- 
tion, it  shall  be  considered  renewed  for  another  period  of  ten  years,  and  so  on  in 
like  manner. 

Article  15.  The  present  treaty  shall  be  ratified  and  the  ratifications  ex- 
changed at  Buenos  Aires  within  six  months  from  this  date. 

Japan 

Japan  concluded  a  treaty  of  friendship,  commerce,  and  navigation  with 
Siam,  February  25,  1898.  Article  3  of  the  annexed  protocol  contains  the  fol- 
lowing arbitration  clause:  Any  controversies  which  may  arise  respecting  the 
interpretation  or  the  execution  of  the  treaty  signed  this  day  or  the  conse- 
[29]  quences  of  any  violation  thereof  shall  be  submitted,  when  the  means  of  set- 
tling them  directly  by  amicable  agreement  are  exhausted,  to  the  decision  of 
commissions  of  arbitration,  and  the  result  of  such  arbitration  shall  be  binding 
upon  both  Governments. 

The  members  of  such  commissions  shall  be  selected  by  the  two  Governments 
by  common  consent,  failing  which  each  of  the  Parties  shall  nominate  an  arbitrator, 
or  an  equal  number  of  arbitrators  thus  appointed  shall  select  an  umpire. 

The  procedure  of  the  arbitration  shall  in  each  case  be  determined  by  the 
contracting  Parties,  failing  which  the  commission  of  arbitration  shall  be  itself 
entitled  to  determine  it  beforehand. 

Mexico 

1.  Mexico  and  Great  Britain.  Treaty  of  friendship,  commerce,  and  naviga- 
tion of  November  27,  1888.  Article  15.  (Reproduced  under  the  heading  "  Great 
Britain.") 

2.  Mexico  and  Italy.  Treaty  of  commerce  of  April  16,  1890.  Article  27. 
(Reproduced  under  the  heading  "  Italy.") 

Montenegro 

Montenegro  and  Italy.  Treaty  of  commerce  of  March  28,  1883.  Article  17. 
(Reproduced  under  the  heading  "  Italy.") 

Norway 

Norway  is  bound  by  clauses  of  arbitration  with  the  following  countries : 

1.  Norway  and  Mexico.     Treaty  of  July  29,  1885.     Articles  26  and  27. 

Article  26.  The  questions  that  may  arise  respecting  the  interpretation  or 
the  execution  of  the  treaty  of  commerce  between  Sweden  and  Norway  and 
Mexico  or  respecting  the  consequences  of  any  violation  of  the  said  treaty  shall  be 
submitted,  when  all  direct  means  of  arrangement  and  friendly  discussion  between 
the  two  high  Parties  have  been  exhausted,  to  commissions  of  arbitration  whose 
decisions  shall  be  binding  on  the  high  contracting  Parties.  The  members  of  these 
commissions  shall  be  appointed  by  a  common  agreement  by  the  two  high  Parties, 
and  in  case  agreement  cannot  be  reached,  each  of  them  shall  name  an  arbitrator 


830  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

or  an  equal  number  of  arbitrators,  and  those  who  are  thus  named  shall  designate 
an  umpire,  who  shall  act  in  case  of  disagreement.  The  procedure  for  the  arbi- 
tration shall  be  determined  in  each  case  by  the  high  contracting  Parties,  and  in 
default  thereof  the  commission  of  arbitration  shall  determine  it  before  entering 
upon  its  duties.  In  all  cases  the  high  contracting  Parties  shall  define  the  ques- 
tions or  matters  which  are  to  be  submitted  to  arbitration. 

Article  27.  It  is  consequently  stipulated  that  if  one  or  more  articles  of  the 
present  treaty  come  to  be  violated  or  infringed,  neither  of  the  contracting  Parties 
shall  make  or  authorize  reprisals  of  any  kind,  nor  declare  war  upon  the  other 
by  reason  of  an  injury  suffered  by  it  until  the  Party  which  considers  itself  ag- 
grieved has  presented  to  the  other  a  statement  accompanied  by  evidence  of  its  com- 
plaints, and,  after  having  requested  justice  and  satisfaction,  its  request  has  been 
rejected  and  the  offending  Party  has  refused  to  submit  the  difference  to  the  com- 
mission of  arbitration. 

2.  Norway  and  Siam.  Treaty  of  friendship,  commerce,  and  navigation  of 
May  18,  1868.  Article  28.  (Text  identical  with  Article  26  of  the  treaty  be- 
tween Austria-Hungary  and  Siam,  reproduced  under  the  heading  "  Austria-Hun- 
gary.") 

3.  Norway  and  Spain.  Declaration  of  June  23,  1887.  Article  2.  (Text 
reproduced  under  the  heading  "  Spain.") 

4.  Norway  and  Switzerland.  Treaty  of  commerce  and  settlement  of  March 
22,  1894,  Article  7:  In  case  a  difference  respecting  the  interpretation  or  the 
application  of  the  present  treaty  arises  between  the  two  contracting  Parties  and 
cannot  be  settled  in  a  friendly  way  by  means  of  diplomatic  correspondence,  they 
agree  to  submit  it  to  the  judgment  of  an  arbitral  tribunal,  whose  decision  they 

engage  to  respect  and  execute  loyally. 
[30]   The  arbitral  tribunal  shall  be  composed  of  three  members.     Each  of  the 

contracting  Parties  shall  designate  one  of  them,  who  shall  be  chosen  outside 
its  nationals  and  the  inhabitants  of  the  country.  These  two  arbitrators  shall  name 
the  third.  If  they  cannot  agree  on  the  choice  of  the  latter,  the  third  arbitrator 
shall  be  named  by  a  Government  designated  by  two  arbitrators  or,  in  default  of 
agreement  by  lot. 

5.  Norway  and  Belgium.  Treaty  of  commerce  and  navigation  of  June  11, 
1895.     Article  20.     (Text  reproduced  above  under  the  heading  "  Belgium.") 

6.  Norway  and  Portugal.  Treaty  of  commerce  of  December  31,  1895. 
(Same  text  as  that  of  the  treaty  of  Switzerland  reproduced  above.  No.  5.) 

Netherlands 

1.  Netherlands  and  Italy.     Convention  for  gratuitous  patronage  of  January 

9,  1884.     Article  4.     (Reproduced  under  the  heading  "  Italy.") 

2.  Netherlands  and  Portugal.  These  two  States  are  reciprocally  bound  by  a 
clause  of  arbitration,  at  first  limited,  then  generalized  under  the  following  condi- 
tions : 

A.  Clause  of  limited  arbitration.     The  Convention  concluded  at  Lisbon,  June 

10,  1893,  between  the  Netherlands  and  Portugal  to  regulate  in  an  exact  way  the 
relations  between  the  two  countries  in  the  Archipelago  of  Timor  and  Solor  con- 
tains in  its  Article  7  the  following  arbitration  clause : 

In  case  any  difference  should  arise  in  respect  of  their  international  rela- 
tions in  the  Archipelago  of  Timor  and  Solor  or  on  the  subject  of  the  interpre- 


ANNEXES  831 

tation  of  the  present  Convention,  the  high  Parties  engage  to  submit  to  the 
decision  of  a  commission  of  arbitrators.  This  commission  shall  be  composed 
of  an  equal  number  of  arbitrators  chosen  by  the  high  contracting  Parties 
and  an  arbitrator  designated  by  those  arbitrators. 

B.  Clause  of  general  arbitration.  The  Declaration  exchanged  at  Lisbon, 
July  5,  1894,  between  the  two  Governments  on  the  subject  of  the  provisional 
regulation  of  commercial  relations  contains  the  following  clause : 

All  questions  and  all  differences  respecting  the  interpretation  or  execu- 
tion of  the  present  Declaration,  likewise  any  other  question  that  may  arise 
between  the  two  countries,  provided  that  it  does  not  touch  their  independence 
or  their  autonomy,  if  they  cannot  be  settled  amicably,  shall  be  submitted  to 
the  judgment  of  two  arbitrators,  of  which  one  shall  be  appointed  by  each  of 
the  two  Governments.  In  case  of  difference  of  opinion  between  the  two  arbi- 
trators, the  latter  shall  designate  by  common  agreement  a  third  who  shall 
decide. 

Portugal 

1.  Portugal  and  Netherlands.  Convention  of  June  10,  1893.  Article  7 
(clause  of  limited  arbitration)  and  Declaration  of  July  5,  1894  (clause  of  gen- 
eral arbitration).     (Reproduced  under  the  heading  "  Netherlands.") 

2.  Portugal  and  Norway.  Treaty  of  commerce  of  December  31,  1895.  (Re- 
produced under  the  heading  "  Norway.") 

Roumania 

1.  Roumania  and  Italy.  Consular  Convention  of  August  17,  1880.  Article  32. 
(Reproduced  under  the  heading  "  Italy.") 

2.  Roumania  and  Switzerland.  Treaty  of  commerce  of  February  19/March 
3,  1893.  Article  7:  The  high  contracting  Parties  agree  to  settle,  should  the 
case  arise,  by  means  of  arbitration  the  questions  concerning  the  application  and 
interpretation  of  the  present  Convention  which  cannot  be  settled  to  their  mutual 
satisfaction  by  the  direct  means  of  diplomatic  negotiation. 

Siam 

Five  treaties  concluded  by  the  Siamese  Government  contain  a  clause  of  arbi- 
tration : 

1.  Siam  and  Sweden  and  Norway.  Treaty  of  friendship,  commerce,  and 
navigation  of  May  18,  1868.  Article  25.  (Text  identical  with  Article  26  of  the 
treaty  between  Austria-Hungary  and  Siam,  reproduced  under  the  heading  "  Aus- 
tria-Hungary.") 

2.  Siam  and  Belgium.  Treaty  of  friendship  and  commerce  of  August  29, 
1868.     (Reproduced  under  the  heading  "  Belgium.") 

3.  Siam  and  Italy.     Treaty  of  friendship,  commerce,  and  navigation  of  Octo- 
ber 3,  1868.     Article  27.     (Reproduced  under  the  heading  "  Italy.") 

[31]  4.  Siam  and   Austria-Hungry.     Treaty   of   commerce  of   May   17,    1869. 
Article  26.     (Reproduced  under  the  heading  "Austria-Hungary.") 
5.  Siam  and  Japan.     Treaty  of   friendship,  commerce,  and  navigation  of 
February  25,  1898.     Article  3  of  the  annexed  protocol.     (Reproduced  under  the 
heading  "  Japan.") 


832  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

Sweden 

1.  Sweden  and  Siam.  Treaty  of  friendship,  commerce,  and  navigation  of 
May  18,  1868.  Article  24.  (Text  identical  with  Article  26  of  the  treaty  with 
Austria-Hungary,  reproduced  under  the  heading  "  Austria-Hungary.") 

2.  Sweden  and  Spain.  Declaration  of  June  23,  1887.  Article  2.  (Repro- 
duced under  the  heading  "  Spain.") 

3.  Sweden  and  Belgium.  Treaty  of  commerce  and  navigation  of  June  11, 
1895.     Article  20.     (Reproduced  under  the  heading  "  Belgium.") 

Switzerland 

1.  Switzerland  and  Hawaii.  Treaty  of  friendship,  establishment,  and  com- 
merce of  July  20,  1864.  Article  12.  (Text  similar  to  that  of  the  treaty  between 
Belgium  and  Hawaii,  reproduced  under  the  heading  "  Belgium.") 

2.  Switzerland  and  Salvador.  Treaty  of  friendship,  establishment,  and  com- 
merce of  October  30,  1883.  Article  13 :  In  case  a  difference  should  arise  be- 
tween the  two  contracting  countries  and  cannot  be  amicably  arranged  through 
diplomatic  correspondence  between  the  two  Governments,  the  latter  agree  to 
submit  it  to  the  judgment  of  an  arbitral  tribunal,  whose  decision  they  engage  to 
respect  and  execute  loyally. 

The  arbitral  tribunal  shall  be  composed  of  three  members.  Each  of  the  two 
States  shall  designate  one  of  them  chosen  outside  of  its  nationals  and  the  inhab- 
itants of  the  country.  The  two  arbitrators  shall  name  the  third.  If  they  can- 
not agree  on  this  choice,  the  third  arbitrator  shall  be  named  by  a  Government 
designated  by  the  two  arbitrators,  or,  in  the  absence  of  agreement,  by  lot. 

3.  Switzerland  and  the  South  African  Republic.  Treaty  of  friendship,  estab- 
lishment, and  commerce  of  November  6,  1885.  Article  11.  (Text  identical  with 
that  of  No.  2.) 

4.  Switzerland  and  Ecuador.  Treaty  of  friendship,  establishment,  and  com- 
merce of  June  22,  1888.     Article  4.     (Text  identical  with  that  of  No.  2.) 

5.  Switzerland  and  Independent  State  of  the  Kongo.  Treaty  of  friendship, 
establishment,  and  commerce  of  November  16,  1889.  Article  13.  (Text  iden- 
tical with  that  of  No.  2.) 

6.  Switzerland  and  Italy.  Treaty  of  commerce  of  April  19,  1892.  Article  14. 
(Reproduced  under  the  heading  "Italy.") 

7.  Switzerland  and  Roumania.  Treaty  of  commerce  of  February  19/March 
3,  1893.     Article  7.     (Reproduced  under  the  heading  "  Roumania.") 

8.  Switzerland  and  Norway.  Treaty  of  commerce  and  establishment  of 
March  22,  1894.     Article  7.     (Reproduced  under  the  heading  "Norway.") 


ANNEXES  833 

Annex  6 

[32] 

PROPOSAL  OF  MR.  HOLLS,  DELEGATE  OF  THE  UNITED  STATES 

OF  AMERICA 

Institution  of  a  Special  Mediation 

The  signatory  Powers  are  agreed  in  recommending  the  application  when  cir- 
cumstances allow,  of  special  mediation  in  the  following  form: 

In  case  of  a  serious  difference  threatening  the  peace,  the  States  in  dispute 
choose  respectively  a  Power  to  which  they  entrust  the  mission  of  entering  into 
direct  communication,  with  the  object  of  preventing  the  rupture  of  pacific  rela- 
tions. 

For  the  period  of  their  mandate  which,  unless  there  is  a  contrary  provision, 
cannot  exceed  thirty  days,  the  question  in  dispute  is  regarded  as  referred  exclu- 
sively to  these  Powers.     They  must  use  their  best  efforts  to  settle  the  difficulty. 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are  charged 
with  the  joint  task  of  taking  advantage  of  any  opportunity  to  restore  peace. 


Annex  7 

[^^]  -^ 

V/PLAN  FOR  AN  INTERNATIONAL  TRIBUNAL 

Proposal  of  the  Commission  of  the  United  States  of  America,  Submitted 

TO  THE  Committee  of  Examination  at  the  Meeting 

of  Wednesday,  May  31,  1899 

Resolved,  That  in  order  to  aid  in  the  prevention  of  armed  conflicts  by  pacific 
means,  the  representatives  of  the  sovereign  Powers  assembled  together  in  this 
Conference  be,  and  hereby  are,  requested  to  propose  to  their  respective  Govern- 
ments a  series  of  negotiations  for  the  adoption  of  a  general  treaty  having  for  its 
object  the  following  plan,  with  such  modifications  as  may  be  essential  to  secure 
the  adhesion  of  at  least  nine  sovereign  Powers/of  which  at  least  eight  must  be 
American  or  European  Powers,  and  at  least  four  must  have  been  among  the 
number  of  the  signatories  of  the  Convention  of  Paris,  the  German  Empire  being 
considered  as  successor  of  Prussia,  and  the  Kingdom  of  Italy  as  that  of  Sardinia./ 

(1)  The  tribunal  shall  be  composed  of  persons  noted  for  their  high  integrity 
and  their  competence  in  international  law,  and  shall  be  named  by  the  majority  of 
the  members  of  the  highest  court  of  justice  existing  in  each  of  the  adhering  States. 
Each  State  signatory  of  the  treaty  shall  have  a  representative  on  the  tribunal. 
The  members  of  this  body  shall  hold  office  until  their  successors  have  been  duly 
appointed  according  to  the  same  manner  of  election. 

(2)  The  tribunal  shall  meet  for  organization  at  a  time  and  place  agreed  upon 
by  the  several  Governments.     However,  this  should  not  be  more  than  six  months 


834  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

after  the  ratification  of  the  general  treaty  by  the  nine  Powers  mentioned  above. 
The  tribunal  shall  appoint  a  permanent  registrar  and  such  other  officers  as  may 
be  found  necessary.  The  tribunal  shall  be  empowered  to  fix  its  place  of  session 
and  to  change  the  same  from  time  to  time  as  the  interests  of  justice  or  the  con- 
venience of  the  litigants  may  seem  to  require.  It  fixes  the  rules  of  procedure 
which  it  is  to  follow. 

(3)  The  tribunal  shall  be  of  a  permanent  character  and  shall  be  always  open, 
within  the  limits  of  its  own  rules  of  procedure,  for  the  filing  of  new  cases  and 
counter-cases  submitted  by  either  the  signatory  nations  or  by  all  other  nations  that 
wish  to  have  recourse  to  it ;  all  these  cases  and  counter-cases,  with  the  testimony 
and  arguments  by  which  they  are  to  be  supported  or  answered,  are  to  be  written 
or  printed.  All  cases,  counter-cases,  evidence,  arguments,  and  opinions  express- 
ing judgment  are  to  be  accessible,  after  a  decision  is  rendered,  to  all  who  desire 
to  pay  the  charges  for  transcription. 

(4)  All  differences  between  signatory  Powers  may,  by  common  consent,  be 
submitted  by  the  interested  nations  to  the  judgment  of  this  international  tribunal, 
but,  in  all  cases  that  this  tribunal  shall  be  constituted,  the  interested  parties  agree, 
in  addressing  themselves  to  it,  to  accept  its  award. 

(5)  For  each  particular  case  the  Court  shall  be  constituted  in  accord  with 
treaties  in  force  between  the  litigant  nations,  whether  the  tribunal  sits  as  a  whole 
or  whether  the  litigant  nations  designate  only  certain  of  its  members,  an  odd 
number  of  not  less  than  three.  In  case  the  Court  is  composed  of  but  three  judges, 
none  of  them  may  be  either  a  native,  subject  or  citizen  of  the  States  whose  inter- 
ests are  in  litigation. 

(6)  The  general  expenses  of  the  Court  are  to  be  divided  equally  or  in  just 
proportion  among  the  adhering  Powers,  but  the  expenses  arising  from  each 

[34]  particular  case  shall  be  provided  for  as  may  be  directed  by  the  tribunal. 
The  salaries  of  the  judges  may  be  arranged  so  that  they  are  not  payable 
until  the  said  judges  have  actually  fulfilled  their  duties  to  the  tribunal.  Cases 
wherein  one  or  both  of  the  parties  may  be  a  non-adherent  State  shall  be  admitted 
only  upon  condition  of  a  mutual  agreement  between  the  litigant  States  to  pay 
respectively  a  certain  sum  to  be  fixed  by  the  tribunal  to  cover  the  expenses  of  the 
adjudication. 

(7)  Every  litigant  which  shall  have  submitted  a  case  to  the  international 
tribunal  shall  have  the  right  to  a  reexamination  of  its  case  before  the  same  judges, 
within  three  months  after  the  notification  of  the  decision,  if  it  declare  itself  able 
to  invoke  new  evidence  or  questions  of  law  not  raised  or  settled  the  first  time. 

(8)  The  treaty  here  proposed  shall  become  operative  when  nine  sovereign 
States,  upon  the  conditions  laid  down  in  the  resolution,  shall  have  ratified  its 
provisions. 


ANNEXES 


835 


Annex  8 

[35] 


GOOD  OFFICES  AND  MEDIATION 


Proposals  of  the  Committee  of  Examination  presented  to  the  Third 

Commission,  July  1 


Texts  submitted  for  the  examination 
of  the  committee 

Article  1   (Russian  draft) 

With  the  purpose  of  obviating,  as  far 
as  possible,  recourse  to  force  in  inter- 
national relations,  the  signatory  Powers 
have  agreed  to  use  their  best  efforts  to 
bring  about  by  pacific  means  the  set- 
tlement of  disputes  which  may  arise 
between  them. 

Article  2  (Russian  draft) 

Consequently,  the  signatory  Powers 
have  decided  that,  in  case  of  serious 
disagreement  or  dispute,  before  an  ap- 
peal to  arms,  they  will  have  recourse,  so 
far  as  circumstances  admit,  to  the  good 
offices  or  mediation  of  one  or  more 
friendly  Powers. 

Article  3   (Russian  draft) 

In  the  case  of  mediation  accepted 
spontaneously  by  the  litigant  States, 
the  object  of  the  Government  acting  as 
mediator  is  to  reconcile  the  opposing 
claims  and  appease  the  feelings  of  re- 
sentment which  may  have  arisen  be- 
tween these  States. 


Article  4  (Russian  draft) 

The  part  of  the  Government  acting 
as  mediator  is  at  an  end  when  the  set- 
tlement proposed  by  it  or  the  bases  of  a 
friendly  settlement  which  it  may  have 


Texts  presented  to  the  Third  Commis- 
sion by  the  committee 

Article  1 

With  the  purpose  of  obviating,  as  far 
as  possible,  recourse  to  force  in  inter- 
national relations,  the  signatory  Powers 
have  agreed  to  use  their  best  eflcorts  to 
bring  about  by  pacific  means  the  settle- 
ment of  disputes  which  may  arise  be- 
tween them. 

Article  2 

Consequently,  the  signatory  Powers 
decide  that  in  case  of  serious  disagree- 
ment or  dispute,  before  an  appeal  to 
arms,  they  will  have  recourse,  unless 
exceptional  circumstances  render  this 
method  manifestly  impossible,  to  the 
good  offices  or  mediation  of  one  or 
more  friendly  Powers. 

Article  3 

Independently  of  this  recourse,  the 
signatory  Powers  deem  it  expedient  that 
one  or  more  Powers,  strangers  to  the 
dispute,  should,  on  their  own  initiative, 
and  as  far  as  circumstances  may  allow, 
oflfer  their  good  offices  or  mediation  to 
the  States  in  dispute. 

Powers  strangers  to  the  dispute  have 
the  right  to  oflfer  good  offices  or  media- 
tion, even  during  the  course  of  hostili- 
ties. 

Article  4 

The  part  of  the  mediator  consists  in 
the  reconciliation  of  the  opposing  claims 
and  in  appeasing  the  feelings  of  resent- 
ment which  may  have  arisen  between 


836 


THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 


suggested  are  not  accepted  by  the  liti- 
gant States. 

Article  5   (Russian  draft) 

The  Powers  consider  it  useful,  in  case 
of  serious  disagreement  or  conflict  be- 
tween civilized  States  concerning  ques- 
tions of  a  political  nature  —  independ- 
ently of  the  recourse  which  these  Pow- 
ers might  have  to  the  good  offices  and 
mediation  of  Powers  not  involved  in  the 
dispute  —  for  the  latter,  on  their  own 

initiative,  and  so  far  as  circum- 
[36]  stances  will  allow,  to  offer  their 

good  offices  or  their  mediation  in 
order  to  smooth  away  the  difficulty 
which  has  arisen,  by  proposing  a 
friendly  settlement,  which  without  af- 
fecting the  interest  of  other  States, 
might  be  of  such  a  nature  as  to  recon- 
cile in  the  best  way  possible  the  inter- 
ests of  the  litigant  parties. 

Article  6  (Russian  draft) 

It  is  of  course  understood  that  media- 
tion and  good  offices,  whether  offered 
on  the  initiative  of  the  litigant  parties, 
or  upon  that  of  the  neutral  Powers, 
have  strictly  the  character  of  friendly 
advice  and  no  binding  force  whatever. 

Additional  Article 

(Proposed  by  His  Excellency  Count 

Nigra) 

(See  the  form  adopted  opposite.) 


the  States  in  dispute. 

Article  5 

The  functions  of  the  mediator  are  at 
an  end  when  once  it  is  declared,  either 
by  one  of  the  parties  to  the  dispute,  or 
by  the  mediator  himself,  that  the  settle- 
ment or  the  bases  of  a  friendly  settle- 
ment proposed  by  him  are  not  accepted. 


Article  6 

Good  offices  and  mediation,  under- 
taken either  at  the  request  of  the  liti- 
gant parties,  or  on  the  initiative  of  Pow- 
ers strangers  to  the  dispute  have  ex- 
clusively the  character  of  friendly  ad- 
vice. 

Article  7 

The  acceptance  of  mediation  cannot, 
unless  there  be  an  agreement  to  the 
contrary,  have  the  effect  of  interrupt- 
ing, delaying,  or  hindering  mobilization 
or  other  measures  of  preparation  for 
war. 

If  it  takes  place  after  the  commence- 
ment of  hostilities,  the  military  opera- 
tions in  progress  are  not  interrupted  un- 
less there  be  an  agreement  to  the  con- 
trary. 

SPECIAL  MEDIATION 
Proposition  of  Mr.  Holls  Article  8 

(See  the  form  adopted  opposite.)  The  signatory  Powers  are  agreed  in 

recommending  the  application  when  cir- 


ANNEXES  837 

cumstances  allow,  of  special  mediation 
in  the  following  form : 

In  case  of  a  serious  difference  threat- 
ening the  peace,  the  States  in  dispute 
choose  respectively  a  Power  to  which 
they  entrust  the  mission  of  entering 
into  direct  communication  with  the 
Power  chosen  on  the  other  side,  with 
the  object  of  preventing  the  rupture  of 
pacific  relations. 

For  the  period  of  their  mandate 
which,  unless  otherwise  stipulated,  can- 
not exceed  thirty  days,  the  question  in 
dispute  is  regarded  as  referred  exclu- 
sively to  these  Powers.  They  must  use 
their  best  efforts  to  settle  the  difference. 

In  case  of  a  definite  rupture  of  pa- 
cific relations,  these  Powers  are  charged 
with  the  joint  task  of  taking  advantage 
of  any  opportunity  to  restore  peace. 


Annex  9 

[37] 


THE  CODE  OF  INTERNATIONAL  ARBITRATION 


Proposals  of  the  Committee    of  Examination  presented  to  the  Third 

Commission,  July  5,  1899 

I. —  The  system  of  arbitration  and  disputes  dependent  thereon 

Text  submitted  to  the  examination  of     Text  presented  by  the  committee  to  the 
the  committee  Third  Commission  ^ 

Article 

(International  arbitration  has  for  its 
object  the  settlement  of  disputes  be- 
tween States  by  judges  of  their  own 
choice  and  in  accordance  with  their  re- 
ciprocal rights.) 

Article  7  Article  7 

With  regard  to  those  controversies  In  questions  of  law  and  especially  in 

1  The  articles  in  parentheses  indicate  the  provisions  proposed  by  Chevalier  Descamps 
and  not  yet  adopted  by  the  committee. 


838 


THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 


concerning  questions  of  law,  and  es- 
pecially with  regard  to  those  concern- 
ing the  interpretation  or  application  of 
treaties  in  force,  arbitration  is  recog- 
nized by  the  signatory  Powers  as  being 
the  most  effective  and  at  the  same 
time  the  most  equitable  means  for  the 
friendly  settlement  of  these  disputes. 

Article  8 

The  contracting  Powers  consequently 
agree  to  have  recourse  to  arbitration  in 
cases  involving  questions  of  the  char- 
acter above  mentioned,  so  far  as  they  do 
not  concern  the  vital  interests  or  na- 
tional honor  of  the  litigant  powers. 

Article  9 

Each  State  remains  the  sole  judge  of 
whether  this  or  that  case  should  be  sub- 
mitted to  arbitration,  excepting  those 
enumerated  in  the  following  article,  in 
which  cases  the  signatory  Powers  to  the 
present  document  consider  arbitration 
as  obligatory  upon  them. 

Article  10 

Upon  the  ratification  of  the  present 
document  by  all  the  signatory  Powers, 
arbitration  will  be  obligatory  in  the  fol- 
lowing cases,  so  far  as  they  do  not  con- 
cern the  vital  interests  or  national  honor 

of  the  contracting  States. 
[38]  I.  In  case  of  differences  or  dis- 
putes relating  to  pecuniary  dam- 
ages suffered  by  a  State  or  its  nation- 
als, as  a  consequence  of  illegal  actions 
or  negligence  on  the  part  of  another 
State  or  its  nationals. 

II.  In  case  of  disagreement  relating 
to  the  interpretation  or  application  of 
the  treaties  and  conventions  mentioned 
below : 

1.  Treaties  and  conventions  relating 
to  the  posts  and  telegraphs,  railroads, 
and  also  those  bearing  upon  the  protec- 
tion of  submarine  telegraph  cables ;  reg- 
ulations concerning  methods  to  prevent 
collisions  of  vessels  on  the  high  sea; 


those  concerning  the  interpretation  or 
application  of  international  conventions, 
arbitration  is  recognized  by  the  high 
contracting  Parties  as  the  most  effec- 
tive and  at  the  same  time  the  most 
equitable  means  to  settle  pacifically 
cases  of  disputes  not  settled  by  diplo- 
macy. 

Article  8 

Consequently,  the  high  contracting 
Parties  agree  to  have  recourse  to  arbi- 
tration in  the  cases  above  mentioned ;  so 
far  as  the  questions  to  be  settled  do  not 
concern  the  vital  interests  or  national 
honor  of  the  litigant  Powers. 

Article  9 

Each  State  remains  the  sole  judge  of 
whether  this  or  that  case  should  be  sub- 
mitted to  arbitration,  except  the  cases 
enumerated  in  the  following  article,  in 
which  cases  the  high  contracting  Par- 
ties consider  arbitration  as  obligatory 
upon  them. 

Article  10 

Arbitration  will  be  obligatory  be- 
tween the  high  contracting  Parties  in 
the  following  cases,  so  far  as  they  do 
not  concern  the  vital  interests  or  na- 
tional honor  of  the  States  in  dispute : 

I.  In  case  of  disputes  concerning  the 
interpretation  or  application  of  the  con- 
ventions mentioned  below : 

1.  Conventions  relating  to  posts,  tel- 
egraphs and  telephones. 

2.  Conventions  concerning  the  pro- 
tection of  submarine  cables. 

3.  Conventions  concerning  rail- 
roads. 

4.  Conventions  and  regulations  con- 
cerning the  methods  of  preventing  col- 
lisions of  vessels  at  sea. 

5.  Conventions  concerning  the  pro- 
tection of  literary  and  artistic  works. 

6.  Conventions  concerning  the  pro- 
tection of  industrial  property  (patents, 
trade-marks  and  trade  names). 


ANNEXES 


839 


conventions  relating  to  the  navigation 
of  international  rivers  and  interoceanic 
canals. 

2.  Conventions  concerning  the  pro- 
tection of  literary  and  artistic  property, 
as  well  as  industrial  property  (patents, 
trade-marks  and  trade  names)  ;  conven- 
tions relating  to  money  and  measures; 
conventions  relating  to  sanitation  and 
veterinary  surgery,  and  for  the  preven- 
tion of  phylloxera. 

3.  Conventions  relating  to  inherit- 
ance, exchange  of  prisoners,  and  recip- 
rocal assistance  in  the  administration  of 
justice. 

4.  Conventions  for  marking  boun- 
daries, so  far  as  they  concern  purely 
technical  and  non-political  questions. 

Article  11  (formerly  12) 

In  all  other  cases  of  international 
disputes,  not  mentioned  in  the  above  ar- 
ticles, arbitration,  while  certainly  very 
desirable  and  recommended  by  the  pres- 
ent act,  is  only  voluntary,  that  is  to  say 
it  cannot  be  resorted  to  except  upon  the 
suggestion  of  one  of  the  parties  in  liti- 
gation, made  of  its  own  accord  and  with 
the  express  consent  and  full  agreement 
of  the  other  party  or  parties. 

Article  12   (formerly  11) 

The  enumeration  of  the  cases  men- 
tioned in  the  above  article  may  be  com- 
pleted by  subsequent  agreement  between 
the  signatory  Powers  of  the  present  act. 

Besides,  each  of  them  may  enter  into 
a  special  agreement  with  another 
Power,  with  a  view  to  making  arbitra- 
tion obligatory  in  the  above  cases  be- 
fore general  ratification,  as  well  as  to 
extend  the  scope  thereof  to  all  cases 
which  the  State  may  deem  it  possible 
to  submit  to  arbitration. 


[39] 


Article  13 


With  a  view  to  facilitating  re- 
course to  arbitration  and  its  applica- 
tion, the  signatory  Powers  have  agreed 


7.  Conventions  concerning  the  sys- 
tem of  weights  and  measures. 

8.  Conventions  concerning  recipro- 
cal free  assistance  to  the  indigent  sick. 

9.  Conventions  relating  to  sanita- 
tion, conventions  concerning  epizooty, 
phylloxera  and  other  similar  scourges. 

10.  Conventions  concerning  civil  pro- 
cedure. 

11.  Conventions  of  extradition. 

12.  Conventions  for  settling  boun- 
daries so  far  as  they  concern  purely 
technical  and  non-political  questions. 

II.  In  case  of  disputes  concerning  pe- 
cuniary claims  for  damages  when  the 
principle  of  indemnity  is  recognized  by 
the  parties. 

Article  11 

In  cases  of  disputes  not  mentioned 
in  the  preceding  article  (or  not  pro- 
vided for  by  special  conventions)  arbi- 
tration, although  recognized  as  very  de- 
sirable and  recommended  by  the  present 
act,  is  still  voluntary,  that  is  to  say,  it 
cannot  be  resorted  to  except  by  com- 
mon agreement  of  the  parties. 


Article  12 

The  enumeration  of  the  cases  men- 
tioned in  Article  10  may  be  completed 
by  subsequent  general  agreements. 

The  high  contracting  Parties  further- 
more reserve  to  themselves  the  right  of 
concluding  particular  agreements,  either 
before  the  ratification  of  the  present  act, 
or  later  with  a  view  to  extend  obliga- 
tory arbitration  to  all  cases  which  they 
may  deem  it  possible  to  submit  to  it. 

Article  13 

(With  a  view  to  facilitating  recourse 
to  arbitration  and  its  application,  the 
high  contracting  Powers  deem  it  wise 


840 


THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 


to  define  by  common  agreement  the 
fundamental  principles  to  be  observed 
by  the  institution  and  the  rules  of  pro- 
cedure to  be  followed  during  the  exam- 
ination of  the  dispute  and  the  delivery 
of  the  arbitral  decision  in  cases  of  in- 
ternational arbitration. 

The  application  of  these  fundamental 
principles,  as  well  as  of  arbitral  pro- 
cedure, indicated  in  the  appendix  to  the 
present  article  may  be  modified  by  a 
special  agreement  between  the  States 
which  resort  to  arbitration. 


to  fix  certain  rules  concerning  the  arbi- 
tral jurisdiction  and  procedure. 

These  provisions  are  applicable  only 
to  the  extent  that  the  parties  themselves 
do  not  adopt  other  rules  on  these  mat- 
ters.) 


II. —  The  permanent  tribunal  of  arbitration 


Article  1 

With  a  view  to  facilitate  immediate 
recourse  to  arbitration  by  States  which 
may  fail  to  adjust  by  diplomatic  nego- 
tiations differences  arising  between 
them,  the  signatory  Powers  agree  to  or- 
ganize in  manner  hereinafter  men- 
tioned, a  permanent  "  tribunal  of  inter- 
national arbitration  "  which  shall  be  ac- 
cessible at  all  times  and  which  shall  be 
governed  by  the  code  of  arbitration  pro- 
vided by  this  Convention,  so  far  as  the 
same  may  be  applicable  and  consistent 
with  any  special  stipulations  agreed  to 
between  the  contesting  parties. 


Article  2 

For  that  purpose  a  permanent  central 
office  shall  be  established  at  ...  , 
where  the  records  of  the  tribunal  shall 
be  preserved  and  its  official  business 
shall  be  transacted.  A  permanent  sec- 
retary, an  archivist,  and  a  suitable  staff 
shall  be  appointed  who  shall  reside  on 
the  spot.  This  office  shall  be  the  me- 
dium of  communication  for  the  assem- 


Article  1 

With  the  object  of  facilitating  an  im- 
mediate recourse  to  arbitration  for  in- 
ternational differences  which  might  not 
have  been  settled  by  diplomacy,  the 
high  contracting  Parties  undertake  to 
organize,  in  the  manner  hereinafter 
mentioned,  a  permanent  tribunal  of  ar- 
bitration accessible  at  all  times  and  op- 
erating unless  otherwise  stipulated  by 
the  parties  in  dispute,  in  accordance 
with  the  code  of  arbitration  inserted  in 
the  present  convention. 


Article  1  bis 
This  tribunal  shall  be  competent  for 
all  arbitration  cases,  whether  obligatory 
or  voluntary,  unless  the  parties  in  dis- 
pute agree  to  institute  a  special  arbitral 
tribunal. 

Article  2 

A  central  bureau  is  established  at 
The  Hague. 

It  is  under  the  direction  of  a  perma- 
nent secretary  general. 

It  serves  as  registry  for  the  tribunal. 

It  is  the  channel  for  communications 
relative  to  its  meetings. 

It  has  custody  of  the  archives  and 
conducts  all  the  administrative  business. 


ANNEXES 


841 


bling  of  the  tribunal  at  the  request  of 
the  contesting  parties. 

Article  3 

Each  of  the  signatory  Powers  shall 
transmit  to  the  others  the  names  of  two 
persons  of  its  nationality  who  shall  be 
recognized  in  their  own  country  as  jur- 
ists or  publicists  of  high  character  for 
learning  and  integrity  and  who  shall  be 
willing  and  qualified  in  all  respects  to 
act  as  arbitrators.  The  persons  so 
nominated  shall  be  members  of  the  Tri- 
bunal and  a  list  of  their  names  shall  be 

recorded  in  the  central  office. 
[40]  In  the  event  of  any  vacancy  oc- 
curring in  the  said  Hst  from  death, 
retirement  or  any  other  cause  whatever, 
such  vacancy  shall  be  filled  up  in  the 
manner  hereinbefore  provided,  with  re- 
.spect  to  the  original  appointment. 


Article  3 

Within  the  three  months  following 
the  ratification  of  the  present  act,  each 
signatory  Power  shall  select  two  per- 
sons of  known  competency  in  questions 
of  international  law,  of  the  highest 
moral  reputation  and  disposed  to  accept 
the  duties  of  arbitrators. 

The  persons  thus  selected  shall  be 
inscribed  as  members  of  the  tribunal  in 
a  Hst  which  shall  be  notified  to  all  the 
signatory  Powers  by  the  central  bureau. 

Two  or  more  Powers  may  agree  on 
the  selection  in  common  of  two  mem- 
bers. 

The  same  person  can  be  selected  by 
different  Powers. 

The  members  of  the  tribunal  are  ap- 
pointed for  a  term  of  six  years.  Their 
appointment  can  be  renewed. 

In  case  of  the  death  or  retirement  of 
a  member  of  the  tribunal,  his  place  is 
filled  in  the  same  way  as  he  was  ap- 
pointed. 


Article  4 

Any  of  the  signatory  Powers  desir- 
ing to  have  recourse  to  the  tribunal  for 
the  peaceful  settlement  of  differences 
which  may  arise  between  them  shall 
notify  such  desire  to  the  secretary  of 
the  central  office  who  shall  thereupon 
furnish  such  Powers  with  a  list  of  the 
members  of  the  tribunal  from  which 
they  shall  select  such  number  of  arbi- 
ters as  may  be  stipulated  for  in  the  arbi- 
tration agreement.  They  may  besides, 
if  they  think  fit,  adjoin  to  them  any 
other  person,  although  his  name  shall 
not  appear  on  the  list.  The  persons  so 
selected  shall  constitute  the  tribunal  for 
the  purposes  of  such  arbitration  and 
shall  assemble  at  such  date  as  may  be 
fixed  for  the  litigants. 

The  tribunal  shall  ordinarily  hold  its 


Article  4 

The  signatory  Powers  which  desire 
to  have  recourse  to  the  tribunal  for  the 
settlement  of  differences  which  have 
arisen  between  them,  notify  such  desire 
to  the  secretary  general  of  the  bureau, 
who  furnishes  them  without  delay  with 
a  list  of  the  members  of  the  tribunal. 

They  select  from  this  list  such  num- 
ber of  arbitrators  as  may  be  agreed 
upon  between  them. 

Failing  the  composition  of  a  complete 
arbitral  court  by  direct  agreement  of 
the  Parties  and  in  default  of  a  contrary 
provision  contained  in  the  compromis, 
the  procedure  under  the  rules  set  forth 
in  Article  10  in  the  code  of  arbitration 
shall  be  pursued  for  the  formation  of 
the  tribunal. 

The  arbitrators  so  selected  shall  con- 


842 


THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 


sessions  at  .  .  .  but  it  shall  have  power 
to  fix  its  place  of  session  elsewhere  and 
to  change  the  same  from  time  to  time 
as  circumstances  and  its  own  conven- 
ience or  that  of  the  litigants  may  sug- 
gest. 


Article  5 

Any  Power  although  not  a  signatory 
Power  may  have  recourse  to  the  tri- 
bunal on  such  terms  as  shall  be  pre- 
scribed by  the  regulations. 

Article  6 

The  Government  of  ...  is  charged 
by  the  signatory  Powers  to  establish 
on  their  behalf  as  soon  as  possible  after 
the  conclusion  of  this  Convention  a 
permanent  council  of  administration  at 
...  to  be  composed  of  five  members 
and  a  secretary. 

The  council  shall  organize  and  estab- 
lish the  central  office  which  shall  be  un- 
der its  control  and  direction.  It  shall 
make  such  rules  and  regulations  from 
time  to  time  as  may  be  necessary  for  the 
proper  discharge  of  the  functions  of  the 
office.  It  shall  dispose  of  all  questions 
which  may  arise  in  relation  to  the 
[41]  working  of  the  tribunal  or  which 
may  be  referred  to  it  by  the  cen- 
tral office.  It  shall  have  absolute  power 
as  regards  the  appointment,  suspension 
or  dismissal  of  all  employees  and  shall 
fix  their  salaries  and  control  the  general 
expenditure. 

The  council  shall  elect  its  president 
who  shall  have  a  casting  vote.  Three 
members  shall  form  a  quorum.  The 
decisions  of  the  council  shall  be  gov- 
erned by  a  majority  of  votes. 


stitute  the  tribunal  for  the  arbitration 
in  question. 

They  assemble  on  the  date  fixed  by 
the  litigant  parties. 

Article  4  bis 

The  tribunal  shall  ordinarily  sit  at 
The  Hague. 

It  shall  have  the  authority  to  sit  else- 
where and  to  change  its  place  of  meet- 
ing according  to  the  circumstances  and 
its  convenience  or  that  of  the  litigant 
parties. 

Article  5 

Any  Power,  although  not  signatory 
of  the  present  act,  may  have  recourse  to 
the  tribunal  on  the  terms  prescribed  in 
the  regulations. 

Article  6 

A  permanent  council  composed  of  the 
diplomatic  representatives  of  the  high 
contracting  Parties  residing  at  The 
Hague  and  of  the  Netherland  Minister 
for  Foreign  Affairs,  who  will  act  as 
president,  shall  be  instituted  in  this  town 
as  soon  as  possible  after  the  ratification 
of  the  present  act. 

This  council  will  be  charged  with  the 
establishment  and  organization  of  the 
central  bureau,  which  will  be  under  its 
direction  and  control. 

It  will  notify  to  the  Powers  the  con- 
stitution of  the  tribunal  and  will  pro- 
vide for  its  installation. 

It  will  settle  its  rules  of  procedure  as 
well  as  measures  necessary  for  the 
proper  operation  of  the  central  bureau. 

It  will  also  settle  all  questions  which 
may  arise  with  regard  to  the  operations 
of  the  tribunal. 

It  will  have  absolute  power  over  the 
appointment,  suspension  or  dismissal  of 
the  officials  and  employees  of  the  cen- 
tral bureau. 

It  will  fix  the  payments  and  salaries 
and  control  the  general  expenditure. 


ANNEXES 


843 


The  remuneration  of  the  members 
shall  be  fixed  from  time  to  time  by  ac- 
cord between  the  signatory  Powers. 


Article  7 

The  signatory  Powers  agree  to  share 
among  them  the  expenses  attending  the 
institution  and  maintenance  of  the  cen- 
tral office  and  of  the  council  of  adminis- 
tration. 

The  expenses  of  and  incident  to 
every  arbitration  including  the  remun- 
eration of  the  arbiters  shall  be  equally 
borne  by  the  contesting  Powers. 


At  meetings  duly  summoned  the  pres- 
ence of  five  members  is  sufficient  to 
render  the  discussions  valid.  The  de- 
cisions are  taken  by  a  majority  of  votes. 

The  council  will  render  annually  to 
the  contracting  Powers  an  account  of 
its  activities,  as  well  as  of  the  labors 
and  expenses  of  the  Bureau. 

(The  members  of  the  permanent 
tribunal  may  be  present  at  the  meetings 
of  the  council  with  right  to  take  part  in 
the  discussion  but  not  to  vote.) 

Article  7 

The  expenses  of  the  central  bureau 
shall  be  borne  by  the  signatory  Powers 
in  the  proportion  fixed  for  the  Interna- 
tional Bureau  of  the  Universal  Postal 
Union. 


III. —  Arbitration  Procedure 


Article  1 


Article  1 


The  signatory  Powers  have  approved 
the  principles  and  rules  below  for  arbi- 
tral procedure  between  nations,  except 
for  modifications  which  may  be  intro- 
duced in  each  special  case  by  common 
agreement  between  litigant  Govern- 
ments. 

Article  2 

The  interested  States,  having  ac- 
cepted arbitration,  sign  a  special  act 
(compromis)  in  which  the  questions 
submitted  to  the  decision  of  the  arbitra- 
tor are  clearly  defined  as  well  as  all  of 
the  facts  and  legal  points  involved 
therein,  and  in  which  is  found  a  formal 
confirmation  of  the  agreement  of  the 
two  contracting  Powers  to  submit  in 
good  faith  and  without  appeal  to  the 
arbitral  decision  which  is  to  be  rendered. 

Article  3 
The  compromis  thus  freely  concluded 


(The  high  contracting  Parties  have 
approved  the  following  rules  for  arbi- 
tral procedure  between  States  without 
prejudice  to  modifications  which  may  be 
made  therein  in  each  special  case  by 
common  agreement  between  the  litigant 
Parties.) 

Article  2 

The  arbitration  convention  may  be 
concluded  for  questions  already  exist- 
ing or  for  questions  which  may  arise  in 
the  future. 

It  may  extend  to  every  dispute  or 
concern  only  certain  disputes. 

It  contains  the  agreement  to  submit  in 
good  faith  to  the  arbitral  decision. 


Article  3 
(The  compromis  determines  the  pre- 


844 


THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 


by  the  States  may  adopt  arbitration 
either  for  all  disputes  arising  between 
them  or  for  disputes  of  a  special  class. 

Article  4 

The  interested  Governments  may  en- 
trust the  duties  of  arbitrator  to  the  sov- 
ereign or  the  chief  of  State  of  a 
[42]  third  Power  when  the  latter 
agrees  thereto.  They  may  also 
entrust  these  duties  either  to  a  single 
person  chosen  by  them,  or  to  an  arbitral 
tribunal  formed  for  this  purpose. 

In  the  latter  case  and  in  view  of  the 
importance  of  the  dispute  the  arbitral 
tribunal  may  be  formed  as  follows: 
each  contracting  party  chooses  two  ar- 
bitrators and  all  the  arbitrators  together 
choose  the  umpire  who  is  de  jure  pres- 
ident of  the  arbitral  tribunal. 

In  case  of  equal  voting  the  litigant 
Governments  shall  address  a  third 
Power  or  a  third  person  by  common 
agreement  and  the  latter  shall  name  the 
umpire. 


Article  5 

If  the  litigant  parties  do  not  arrive  at 
an  agreement  upon  the  choice  of  the 
third  Government  or  person  mentioned 
in  the  preceding  article,  each  of  the 
parties  shall  name  a  Power  not  involved 
in  the  dispute  so  that  the  Powers  thus 
chosen  by  the  litigant  Powers  may  des- 
ignate an  umpire  by  common  agree- 
ment. 


Article  6 

The  disability  or  reasonable  chal- 
lenge, even  if  of  but  one  of  the  above 
arbitrators,  as  well  as  the  refusal  to  ac- 
cept the  office  of  arbitrator  after  the 
acceptance  or  death  of  an  arbitrator  al- 


cise  subject  of  the  dispute  and  the  ex- 
tent of  the  arbitrators'  powers.) 

Article  4 

(The  duties  of  arbitrator  may  be  con- 
ferred on  one  arbitrator  alone  or  on 
several  arbitrators  selected  by  the  par- 
ties as  they  please,  or  chosen  by  them 
from  the  members  of  the  permanent  tri- 
bunal of  arbitration  established  by  the 
present  act. 

Except  in  the  case  of  the  constitution 
of  a  complete  arbitral  jurisdiction  by 
direct  agreement  of  the  parties,  the  fol- 
lowing course  shall  be  pursued  for  the 
formation  of  the  arbitral  tribunal. 

Each  party  appoints  one  arbitrator, 
and  the  arbitrators  thus  appointed  to- 
gether choose  the  umpire. 

If  the  votes  are  equally  divided  the 
choice  of  the  umpire  is  entrusted  to  a 
third  Power  or  person  selected  by  the 
parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on 
this  subject,  each  party  selects  a  differ- 
ent Power  or  person  and  the  choice  of 
the  umpire  is  made  in  concert  by  the 
Powers  thus  selected.) 

Article  5 

(When  the  arbitrator  is  a  sovereign 
or  a  chief  of  State,  the  arbitral  pro- 
cedure depends  entirely  upon  his  august 
decision.) 

Article  5  his 

(The  tribunal  appoints  its  president, 
except  in  the  case  where  there  is  an  um- 
pire in  the  tribunal.  In  this  case  the 
umpire  is  de  jure  president  of  the  tri- 
bunal.) 

Article  6 

Unless  there  is  a  stipulation  to  the 
contrary  in  case  of  the  death,  retire- 
ment, or  disability  from  any  cause  of 
one  of  the  arbitrators,  his  place  is  filled 
in  the  same  way  as  he  was  appointed. 


ANNEXES 


845 


ready  chosen,  invalidates  the  entire 
compromis  except  in  cases  where  these 
conditions  have  been  foreseen  and  pro- 
vided for  in  advance  by  common  agree- 
ment between  the  contracting  Parties. 

Article  7 

The  meeting-place  of  the  arbitral  tri- 
bunal shall  be  fixed  either  by  the  con- 
tracting States,  or  by  the  members  of 
the  tribunal  themselves.  A  change 
from  this  meeting-place  of  the  tribunal 
is  not  permissible  except  by  a  new 
agreement  between  the  interested  Gov- 
ernments, or  in  case  of  force  majeure, 
upon  the  initiative  of  the  tribunal  itself. 

Article  8 

The  litigant  Powers  have  the  right  to 
appoint  delegates  or  special  agents  at- 
tached to  the  arbitral  tribunal  for  the 
purpose  of  serving  as  intermediaries  be- 
tween the  tribunal  and  the  interested 
Governments. 

Besides  these  agents  the  above-men- 
tioned Governments  are  authorized  to 
commit  the  defense  of  their  rights 
[43]  and  interests  before  the  arbitral 
tribunal  to  counsel  or  advocates 
appointed  by  them  for  this  purpose. 

Article  9 

The   arbitral   tribunal   decides   what 
language  shall  be  used  in  its  delibera- 
tions and  arguments  of  the  parties. 
Article  10 

Arbitral  procedure  should  generally 
cover  two  phases,  preliminary  and  final. 

The  former  consists  in  the  commun- 
ication to  the  members  of  the  arbitral 
tribunal  by  the  agents  of  the  contract- 
ing parties  of  all  acts,  documents,  and 
arguments,  printed  or  written,  regard- 
ing the  questions  in  litigation. 

The  second  —  final  or  oral  —  con- 
sists of  the  debates  before  the  arbitral 
tribunal. 


Article  7 

The  tribunal's  place  of  session  is  se- 
lected by  the  litigant  parties,  or  failing 
this  selection,  by  the  arbitration  tribu- 
nal. 

The  place  thus  fixed  cannot  be  al- 
tered except  by  virtue  of  a  new  agree- 
ment between  the  interested  States,  or, 
in  case  of  necessity,  by  the  decision  of 
the  tribunal  itself. 

Article  8 

The  litigant  States  are  entitled  to  ap- 
point delegates  or  special  agents  to  at- 
tend the  tribunal  to  act  as  intermedi- 
aries between  the  tribunal  and  the 
litigant  parties. 

They  are  further  authorized  to  com- 
mit the  defense  of  their  rights  and  in- 
terests before  the  arbitral  tribunal  to 
counsel  or  advocates  appointed  by  them 
for  this  purpose. 

Article  9 

The  tribunal  decides  on  the  choice 
of  languages  to  be  authorized  for  use 
before  it. 

Article  10 

As  a  rule  arbitration  procedure  com- 
prises two  phases,  the  preliminary  phase 
and  the  final  phase. 

The  first  consists  in  the  communica- 
tion, by  the  agents  of  the  States  to  the 
members  of  the  tribunal  and  the  op- 
posite party,  of  all  printed  or  written 
acts  and  of  all  documents  containing  the 
grounds  of  the  parties. 

The  second  is  oral  and  consists  of  the 
discussion  before  the  arbitration  tri- 
bunal. 


846 


THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 


Article  11 

After  the  close  of  the  preHminary 
procedure  the  debates  open  before  the 
arbitral  tribunal  and  are  under  the  di- 
rection of  the  president. 

Minutes  of  all  of  the  deliberations 
are  drawn  up  by  secretaries  appointed 
by  the  president  of  the  tribunal.  These 
minutes  alone  are  of  legal  force. 

Article  12 

The  preliminary  procedure  being  con- 
cluded the  arbitral  tribunal  has  the 
right  to  refuse  all  new  acts  and  docu- 
ments which  the  representatives  of  the 
parties  may  desire  to  submit  to  it. 


Article  13 

The  arbitral  tribunal,  however,  is  al- 
ways absolutely  free  to  take  into  con- 
sideration new  papers  or  documents 
which  the  delegates  or  counsel  of  the 
two  litigant  Governments  have  made 
use  of  during  their  explanations  before 
the  tribunal. 

The  latter  has  the  right  to  require  the 
production  of  these  papers  or  docu- 
ments and  to  make  them  known  to  the 
opposite  party. 

Article  14 

The  arbitral  tribunal  besides  has  the 
right  to  require  the  agents  of  the  parties 
to  present  all  the  acts  or  explanations 
which  it  may  need. 


[44] 


Article  15 


The  agents  and  counsel  of  litigant 
Governments  are  authorized  to  present 
orally  to  the  arbitral  tribunal  all  the 
explanations  or  proofs  which  will  aid 
the  defense  of  the  cause. 


Article  10  bis 
Every    document    produced    by    one 
party   must   be    communicated    to   the 
other. 

Article  11 

The  discussions  before  the  tribunal 
are  under  the  direction  of  the  president. 

They  are  recorded  in  minutes  drawn 
up  by  the  secretaries  appointed  by  the 
president.  These  minutes  alone  have 
an  authentic  character. 

Article  12 

The  preliminary  procedure  being  con- 
cluded and  the  discussions  having  be- 
gun, the  tribunal  is  entitled  to  refuse 
all  new  papers  or  documents  which  the 
representatives  of  one  of  the  parties 
may  wish  to  submit  to  it  without  the 
consent  of  the  other. 

Article  13 

The  tribunal  is  free  to  take  into  con- 
sideration new  papers  or  documents 
which  the  agents  or  counsel  of  the  liti- 
gant parties  have  made  use  of  during 
their  explanations  before  the  tribunal. 

It  has  the  right  to  require  the  produc- 
tion of  these  papers  or  documents,  but 
is  obliged  to  make  them  known  to  the 
opposite  party. 

Article  14 

The  tribunal  can,  besides,  require 
from  the  agents  of  the  parties  the  pro- 
duction of  all  papers  and  all  explana- 
tions which  it  needs. 

Article  15 

The  agents  and  counsel  of  the  parties 
are  authorized  to  present  orally  to  the 
tribunal  all  the  arguments  concerning 
the  defense  of  their  case. 


ANNEXES 


847 


Article  16 

The  agents  and  counsel  have  also  the 
right  to  present  motions  to  the  tribunal 
concerning  the  matters  to  be  discussed. 

The  decisions  of  the  tribunal  upon 
these  motions  are  final  and  cannot  form 
the  subject  of  any  discussion. 


Article  16 

They  are  entitled  to  raise  objections 
and  points.  The  decisions  of  the  tri- 
bunal on  these  points  decide  the  contro- 
versy and  cannot  form  the  subject  of 
any  subsequent  discussion. 


Article  17 

The  members  of  the  arbitral  tribunal 
are  entitled  to  put  questions  to  the 
agents  or  counsel  of  the  contracting 
Parties  or  to  ask  them  for  explanations 
on  doubtful  points. 

Neither  the  questions  put  nor  the  re- 
marks made  by  the  members  of  the  tri- 
bunal during  the  deliberations  can  be  re- 
garded as  expressions  of  opinion  by  the 
tribunal  in  general  or  by  its  members  in 
particular. 


Article  17 

The  members  of  the  tribunal  are  en- 
titled to  put  questions  to  the  agents  and 
counsel  of  the  litigant  parties  and  to 
ask  them  for  explanations  on  doubtful 
points. 

Neither  the  questions  put  nor  the  re- 
marks made  by  members  of  the  tribunal 
in  the  course  of  the  discussions  can  be 
regarded  as  the  enunciation  of  opinion 
by  the  tribunal  in  general  or  by  its  mem- 
bers in  particular. 


Article  18 

The  arbitral  tribunal  alone  is  author- 
ized to  determine  its  competence  in  in- 
terpreting the  clauses  of  the  compromis, 
and  according  to  the  principles  of  in- 
ternational law  as  well  as  the  provisions 
of  special  treaties  which  may  be  in- 
voked in  the  case. 


Article  18 

The  tribunal  alone  is  authorized  to 
declare  its  competency  by  the  interpreta- 
tion of  the  compromis,  as  well  as  the 
other,  treaties  which  may  be  invoked  in 
the  case,  and  by  the  application  of  the 
principles  of  international  law. 


Article  19 

The  arbitral  tribunal  is  entitled  to  is- 
sue rules  of  procedure  for  the  conduct 
of  the  case,  to  decide  the  forms  and 
time  in  which  each  party  must  conclude 
its  arguments  and  to  pass  upon  the  in- 
terpretation of  the  documents  produced 
and  communicated  to  the  twq  parties. 

Article  20 

When  the  agents  and  counsel  of  the 
parties  have  submitted  all  the  explana- 
tions and  evidence  in  defense  of  their 
case,  the  president  of  the  arbitral  tri- 
bunal shall  pronounce  the  discussion 
closed. 


Article  19 

The  tribunal  is  entitled  to  issue  rules 
of  procedure  concerning  the  conduct  of 
the  case,  to  decide  the  forms  and  time 
in  which  each  party  must  conclude  its 
arguments  (and  to  arrange  all  the  for- 
malities required  for  dealing  with  the 
evidence). 

Article  20 

When  the  agents  and  counsel  of  the 
litigant  parties  have  submitted  all  the 
explanations  and  evidence  for  the  de- 
fense of  their  case,  the  president  of  the 
tribunal  pronounces  the  discussion 
closed. 


848 


THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 


Article  21 

The  deliberations  of  the  arbitral  tri- 
bunal on  the  merits  of  the  case  take 
place  in  private. 

Every  decision,  whether  final  or  in- 
terlocutory, is  taken  by  a  majority  of 
the  members  present. 

The  refusal  of  a  member  of  the  tri- 
bunal to  vote  must  be  recorded  in  the 
minutes. 

[45]  Article  22 

The  award  given  by  a  majority  of 
votes  should  be  drawn  up  in  writing  and 
signed  by  each  member  of  the  arbitral 
tribunal. 

Those  members  who  are  in  the  minor- 
ity state  their  dissent  when  signing. 

Article  23 

The  arbitral  award  is  solemnly  read 
out  at  a  public  sitting  of  the  tribunal 
and  in  the  presence  of  the  agents  and 
counsel  of  the  Governments  at  vari- 
ance. 

Article  24 

The  arbitral  award,  duly  pronounced 
and  notified  to  the  agents  of  the  Gov- 
ernments at  variance,  settles  the  dispute 
between  them  definitively  and  without 
appeal,  and  closes  all  of  the  arbitral 
procedure  instituted  by  the  compromis. 


Article  21 

The  deliberations  of  the  tribunal  take 
place  in  private. 

Every  decision  is  taken  by  a  majority 
of  the  members  of  the  tribunal. 

The  refusal  of  a  member  to  vote  must 
be  recorded  in  the  minutes. 

Article  22 

The  award,  given  by  a  majority  of 
votes,  is  drawn  up  in  writing  and  signed 
by  each  member  of  the  tribunal. 

Those  members  who  are  in  the  minor- 
ity may  record  their  dissent  when  sign- 
ing. 

Article  23 

The  award  is  read  out  at  a  public  sit- 
ting of  the  tribunal,  in  the  presence  of 
the  agents  and  counsel  of  the  litigant 
States,  or  upon  their  being  duly  sum- 
moned to  attend. 

Article  24 

The  award,  duly  pronounced  and  no- 
tified to  the  agents  of  the  States  at  vari- 
ance, settles  the  dispute  between  the 
parties  definitively  and  closes  all  of  the 
arbitral  procedure  instituted  by  the 
compromis. 

Article  24  his 

The  award  is  binding  only  on  the 
parties  who  concluded  the  compromis. 

When  there  is  a  question  as  to  the  in- 
terpretation of  a  convention  entered 
into  by  a  larger  number  of  States  than 
those  between  which  the  dispute  has 
arisen,  the  latter  notify  to  the  other 
signatory  States  the  compromis  they 
have  concluded  and  each  of  the  signa- 
tory States  is  entitled  to  intervene  in  the 
case. 

If  one  or  more  of  the  States  avail 
themselves  of  this  right,  the  interpre- 
tation contained  in  the  award  will  be 
equally  binding  upon  them. 


ANNEXES 


849 


Article  25 

Each  party  shall  pay  its  own  expenses 
and  one-half  of  the  expenses  of  the  ar- 
bitral tribunal  without  prejudice  to  the 
decision  of  the  tribunal  regarding  the 
indemnity  that  one  or  the  other  of  the 
parties  may  be  ordered  to  pay. 


Article  25 

Each  party  pays  its  own  expenses, 
and  an  equal  share  of  the  expenses  of 
the  tribunal,  without  prejudice  to  the 
judgments  which  may  be  pronounced 
by  the  tribunal  at  the  expense  of  one  or 
the  other  of  the  parties. 


Article  26 

The  arbitral  award  is  void  in  case  of 
a  void  compromis  or  exceeding  of 
power,  or  of  corruption  proved  against 
one  of  the  arbitrators. 

The  procedure  above  indicated  con- 
cerning the  arbitral  tribunal  and  begin- 
ning with  section  7  commencing  with 
the  words  "  the  seat  of  the  arbitral  tri- 
bunal "  also  applies  in  case  arbitration 
is  entrusted  to  a  single  person  chosen 
by  the  interested  Governments. 

In  case  a  sovereign  or  head  of  a  State 
should  reserve  the  right  to  decide  per- 
sonally as  arbitrator,  the  procedure  to 
be  followed  should  be  fixed  by  the  sov- 
ereign or  the  head  of  the  State  himself. 


Annex  10 

[46] 

DRAFT  CONVENTION  FOR  THE  PACIFIC  SETTLEMENT  OF  INTER- 
NATIONAL DISPUTES  PRESENTED  TO  THE  THIRD  COM- 
MISSION BY  THE  COMMITTEE  OF  EXAMINATION 

SECTION  1. —  The  Maintenance  of  General  Peace 

Article  1 

With  purpose  of  obviating,  as  far  as  possible,  recourse  to  force  in  the  rela- 
tions between  States,  the  signatory  Powers  agree  to  use  their  best  efforts  with  a 
view  to  the  pacific  settlement  of  international  differences. 

SECTION  2. —  Good  Offices  and  Mediation 

Article  2 
The  signatory  Powers  decide  that  in  case  of  serious  disagreement  or  dispute, 


'850  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

before  an  appeal  to  arms,  they  will  have  recourse,  as  far  as  circumstances  allow, 
to  the  good  offices  or  mediation  of  one  or  more  friendly  Powers. 

Article  3 

Independently  of  this  recourse,  the  signatory  Powers  deem  it  expedient  that 
one  or  more  Powers,  strangers  to  the  dispute,  should,  on  their  own  initiative,  and 
as  far  as  circumstances  may  allow,  offer  their  good  offices  or  mediation  to  the 
States  at  variance. 

Powers  strangers  to  the  dispute  have  the  right  to  offer  good  offices  or  media- 
tion, even  during  the  course  of  hostilities. 

The  exercise  of  this  right  can  never  be  regarded  by  either  of  the  parties  in 
dispute  as  an  unfriendly  act. 

Article  4 

The  part  of  the  mediator  consists  in  reconciling  the  opposing  claims  and 
appeasing  the  feelings  of  resentment  which  may  have  arisen  between  the  States 
at  variance. 

Article  5 

The  functions  of  the  mediator  are  at  an  end  when  once  it  is  declared,  either 
by  one  of  the  parties  to  the  dispute  or  by  the  mediator  himself,  that  the  settle- 
ment or  the  bases  of  a  friendly  understanding  proposed  by  him  are  not  accepted. 

Article  6 

Good  offices  and  mediation,  undertaken  either  at  the  request  of  the  parties  in 
dispute,  or  on  the  initiative  of  Powers  strangers  to  the  dispute,  have  exclusively 
the  character  of  advice  and  never  have  binding  force. 

Article  7 

The  acceptance  of  mediation  cannot,  unless  there  be  an  agreement  to  the 
contrary,  have  the  effect  of  interrupting,  delaying,  or  hindering  mobilization  or 
other  measures  of  preparation  for  war. 

If  it  takes  place  after  the  commencement  of  hostilities,  the  military  opera- 
tions in  progress  are  not  interrupted,  unless  there  be  an  agreement  to  the  con- 
trary. 

[47]  Article  8 

The  signatory  Powers  are  agreed  in  recommending  the  application,  when 
circumstances  allow,  of  special  mediation  in  the  following  form : 

In  case  of  a  serious  difference  endangering  the  peace,  the  States  at  variance 
choose  respectively  a  Power,  to  which  they  entrust  the  mission  of  entering  into 
direct  communication  with  the  Power  chosen  on  the  other  side,  with  the  object  of 
preventing  the  rupture  of  pacific  relations. 

For  the  period  of  this  mandate,  the  term  of  which,  unless  otherwise  stipu- 
lated, cannot  exceed  thirty  days,  the  States  in  dispute  cease  from  all  direct  com- 
munication on  the  subject  of  the  dispute,  which  is  regarded  as  referred  exclusively 
to  the  mediating  Powers,  which  must  use  their  best  efforts  to  settle  it. 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are  charged 
with  the  joint  task  of  taking  advantage  of  any  opportunity  to  restore  peace. 


ANNEXES  851 

SECTION  3. —  International  Commissions  of  Inquiry 

Article  9 

In  disputes  of  an  international  nature  arising  from  a  difference  of  opinion 
as  to  facts  which  may  be  verified  by  local  examination,  and  furthermore  not 
involving  the  honor  or  vital  interests  of  the  interested  Powers,  these  Powers,  in 
case  they  are  not  able  to  come  to  an  agreement  by  means  of  diplomacy,  agree  to 
have  recourse,  as  far  as  circumstances  allow,  to  the  institution  of  international 
commissions  of  inquiry,  in  order  to  elucidate  on  the  spot  all  the  facts  of  the  case 
by  an  impartial  and  conscientious  investigation. 

Article  10 

The  international  commissions  of  inquiry  are  constituted,  unless  otherwise 
stipulated,  in  the  manner  provided  by  Article  31  of  the  present  Convention. 

Article  11 

The  interested  Powers  undertake  to  supply  the  international  commission  of 
inquiry,  as  fully  as  they  may  think  possible,  with  all  means  and  facilities  neces- 
sary to  enable  it  to  become  completely  acquainted  with  and  to  accurately  under- 
stand the  facts  in  question. 

Article  12 

The  international  commission  of  inquiry  communicates  its  report  to  the  inter- 
ested Powers,  signed  by  all  the  members  of  the  commission. 

Article  13 

The  report  of  the  international  commission  of  inquiry  has  in  no  way  the 
character  of  an  award.  It  leaves  to  the  Powers  in  dispute  entire  power  to  con- 
clude a  friendly  settlement  on  the  basis  of  this  report,  or  to  resort  subsequently  to 
mediation  or  arbitration, 

SECTION  4. —  International  Arbitration 
I. —  The  system  of  arbitration 

Article  14 

International  arbitration  has  for  its  object  the  settlement  of  disputes  between 
States  by  judges  of  their  own  choice  and  on  the  basis  of  respect  for  law. 

Article  15 

In  questions  of  law  and  especially  in  the  interpretation  or  application  of 
international  conventions,  arbitration  is  recognized  by  the  signatory  Powers  as 
the  most  effective  and  at  the  same  time  the  most  equitable  means  of  settling  dis- 
putes which  diplomacy  has  failed  to  settle. 

Article  16 

The  arbitration  convention  is  concluded  for  questions  already  existing  or  for 
questions  which  may  arise  eventually. 


852  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

It  may  embrace  any  dispute  or  only  disputes  of  a  certain  category. 

[48]  Article  17 

The  arbitration  convention  implies  an  engagement  to  submit  in  good  faith  to 
the  arbitral  award. 

Article  18 

Independently  of  general  or  private  treaties  expressly  stipulating  recourse  to 
arbitration  as  obligatory  on  the  signatory  Powers,  these  Powers  reserve  to  them- 
selves the  right  of  concluding,  either  before  the  ratification  of  the  present  act  or 
later,  new  agreements,  general  or  private,  with  a  view  to  extending  obligatory 
arbitration  to  all  cases  which  they  may  consider  it  possible  to  submit  to  it. 

Article  19 
(See  Article  29  his.) 

II.  —  The  Permanent  Court  of  Arbitration 

Article  20 

With  the  object  of  facilitating  an  immediate  recourse  to  arbitration  for  inter- 
national differences  which  it  has  not  been  possible  to  settle  by  diplomacy,  the  sig- 
natory Powers  undertake  to  organize  a  Permanent  Court  of  Arbitration,  accessible 
at  all  times  and  operating,  unless  otherwise  stipulated  by  the  parties,  in  accord- 
ance with  the  rules  of  procedure  inserted  in  the  present  Convention. 

Article  21 

The  Permanent  Court  shall  be  competent  for  all  arbitration  cases,  unless  the 
parties  agree  to  institute  a  special  tribunal. 

Article  22 

An  International  Bureau  established  at  The  Hague  and  placed  under  the 
direction  of  a  permanent  secretary  general  serves  as  registry  for  the  Court. 

This  Bureau  is  the  channel  for  communications  relative  to  the  meetings  of 
the  Court. 

It  has  the  custody  of  the  archives  and  conducts  all  the  administrative  business. 

The  signatory  Powers  undertake  to  communicate  to  the  International  Bureau 
at  The  Hague  a  duly  certified  copy  of  any  conditions  of  arbitration  arrived  at 
between  them  and  of  any  award  concerning  them  delivered  by  a  special  tribunal. 

They  undertake  likewise  to  communicate  to  the  Bureau  the  laws,  regulations 
and  documents  eventually  showing  the  execution  of  the  awards  given  by  the  Court. 

Article  23 

Within  the  three  months  following  its  ratification  of  the  present  act,  each 
signatory  Power  shall  select  four  persons  at  the  most,  of  known  competency  in 
questions  of  international  law,  of  the  highest  moral  reputation,  and  disposed  to 
accept  the  duties  of  arbitrators. 

The  persons  thus  elected  shall  be  inscribed,  as  members  of  the  Court,  in  a 
list  which  shall  be  notified  to  all  the  signatory  Powers  by  the  Bureau. 


ANNEXES  853 

Any  alteration  in  the  list  of  arbitrators .  is  brought  by  the  Bureau  to  the 
knowledge  of  the  signatory  Powers. 

Two  or  more  Powers  may  agree  on  the  selection  in  common  of  one  or  more 
members. 

The  same  person  can  be  selected  by  different  Powers. 

The  members  of  the  Court  are  appointed  for  a  term  of  six  years.  Their 
appointments  can  be  renewed. 

In  case  of  the  death  or  retirement  of  a  member  of  the  Court,  his  place  is 
filled  in  the  same  way  as  he  was  appointed. 

The  members  of  the  Court,  in  the  performance  of  their  duties,  enjoy  diplo- 
matic privileges  and  immunities. 

Article  24 

The  signatory  Powers  which  wish  to  have  recourse  to  the  Court  for  the  set- 
tlement of  a  difference  that  has  arisen  between  them  choose  from  the  general  list 
the  number  of  arbitrators  upon  which  they  have  agreed  by  common  accord. 
[49]  They  notify  to  the  Bureau  their  determination  to  have  recourse  to  the  Court 
and  the  names  of  the  arbitrators  whom  they  have  designated. 

In  default  of  a  provision  to  the  contrary,  the  tribunal  of  arbitration  is  consti- 
tuted in  accordance  with  the  rules  fixed  by  Article  31  of  the  present  Convention. 

The  tribunal  thus  composed  forms  the  competent  court  for  the  case  in 
question. 

It  assembles  on  the  date  fixed  by  the  parties. 

Article  25 

The  tribunal  of  arbitration  sits  ordinarily  at  The  Hague. 
Except  in  cases  of  necessity,  the  place  of  session  can  only  be  altered  by  the 
tribunal  with  the  consent  of  the  parties. 

Article  26 

The  International  Bureau  at  The  Hague  is  authorized  to  place  its  premises 
and  staff  at  the  disposal  of  the  signatory  Powers  for  the  use  of  any  special  board 
of  arbitration. 

Powers  which  are  not  signatories  of  the  present  act  may  also  have  recourse 
to  the  jurisdiction  of  the  Court  under  the  conditions  prescribed  by  the  present 
Convention. 

Article  27 

The  signatory  Powers  consider  it  their  duty,  if  a  serious  dispute  threatens  to 
break  out  between  two  or  more  of  them,  to  remind  these  latter  that  the  Perma- 
nent Court  is  open  to  them. 

Consequently,  they  declare  that  the  fact  of  reminding  the  parties  at  variance 
of  the  provisions  of  the  present  Convention,  and  the  advice  given  to  them,  in  the 
highest  interests  of  peace,  to  have  recourse  to  the  Permanent  Court,  can  only  be 
regarded  as  in  the  nature  of  good  offices. 

Article  28 

I. — 

A  Permanent  Council    composed  of  the  diplomatic  representatives  of  the 

signatory  Powers  accredited  to  The  Hague  and  of  the  Netherland  Minister  for 


854  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

Foreign  Affairs,  who  will  act  as  president,  shall  be  instituted  in  this  town  as  soon 
as  possible  after  the  ratification  of  the  present  act  by  at  least  nine  Powers. 

This  Council  will  be  charged  with  the  establishment  and  organization  of  the 
International  Bureau,  which  will  be  under  its  direction  and  control. 

It  will  notify  to  the  Powers  the  constitution  of  the  Court  and  will  provide 
for  its  installation. 

It  will  settle  its  rules  of  procedure  and  all  other  necessary  regulations. 

It  will  decide  all  questions  which  may  arise  with  regard  to  the  operations  of 
the  Court. 

It  will  have  entire  control  over  the  appointment,  suspension  or  dismissal  of 
the  officials  and  employees  of  the  Bureau. 

It  will  fix  the  payments  and  salaries,  and  control  the  general  expenditure. 

At  meetings  duly  summoned  the  presence  of  five  members  is  sufficient  to 
render  valid  the  discussions  of  the  Council.  The  decisions  are  taken  by  a  ma- 
jority of  votes. 

The  Council  addresses  to  the  signatory  Powers  an  annual  report  on  the  labors 
of  the  Court,  the  working  of  the  administration  and  the  expenditure. 

Article  29 

The  expenses  of  the  Bureau  shall  be  borne  by  the  signatory  Powers  in  the 
proportion  fixed  for  the  International  Bureau  of  the  Universal  Postal  Union. 

III. —  Arbitration  procedure 

Article  29  bis 

With  a  view  to  encouraging  the  development  of  arbitration,  the  signatory 
Powers  have  agreed  on  the  following  rules  which  shall  be  applicable  to  arbitra- 
tion procedure  unless  other  rules  have  been  agreed  on  by  the  parties. 

Article  30 

The  Powers  which  have  recourse  to  arbitration  sign  a  special  act  (compromis), 
in  which  are  clearly  defined  the  subject  of  the  dispute  and  the  extent  of  the 
[50]  arbitrators'  powers.     This  act  implies  an  engagement  of  the  parties  to  sub- 
mit in  good  faith  to  the  arbitral  award. 

Article  31 

The  duties  of  arbitrator  may  be  conferred  on  one  arbitrator  alone  or  on 
several  arbitrators  selected  by  the  parties  as  they  please,  or  chosen  by  them  from 
the  members  of  the  Permanent  Court  of  Arbitration  estabUshed  by  the  present  act. 

Failing  the  composition  of  the  tribunal  by  direct  agreement  of  the  parties, 
the  following  course  is  pursued : 

Each  party  appoints  two  arbitrators,  and  these  together  choose  an  umpire. 

If  the  votes  are  equally  divided  the  choice  of  the  umpire  is  entrusted  to  a 
third  Power,  selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects  a  different 
Power,  and  the  choice  of  the  umpire  is  made  in  concert  by  the  Powers  thus 
selected. 


ANNEXES  855 

Article  32 

When  a  sovereign  or  the  chief  of  a  State  is  chosen  as  arbitrator,  the  arbitra- 
tion procedure  is  settled  by  him. 

Article  33 

The  umpire  is  ex  officio  president  of  the  tribunal. 

When  the  tribunal  does  not  include  an  umpire,  it  appoints  its  own  president. 

Article  34 

In  case  of  the  death,  retirement,  or  disability  from  any  cause  of  one  of  the 
arbitrators,  his  place  is  filled  in  the  same  way  as  he  was  appointed. 

Article  35 

The  tribunal's  place  of  session  is  selected  by  the  parties.  Failing  this  selec- 
tion the  tribunal  sits  at  The  Hague. 

The  place  thus  fixed  cannot,  except  in  case  of  necessity,  be  altered  by  the 
tribunal  without  the»assent  of  the  parties. 

Article  36 

The  parties  are  entitled  to  appoint  delegates  or  special  agents  to  attend  the 
tribunal  to  act  as  intermediaries  between  themselves  and  the  tribunal. 

They  are  further  authorized  to  commit  the  defense  of  their  rights  and  inter- 
ests before  the  tribunal  to  counsel  or  advocates  appointed  by  them  for  this  pur- 
pose. 

Article  37 

The  tribunal  decides  on  the  choice  of  languages  to  be  authorized  for  use 
before  it. 

Article  38 

As  a  general  rule  arbitration  procedure  comprises  two  distinct  phases: 
pleadings  and  oral  discussions. 

The  pleadings  consist  in  the  communication  by  the  respective  agents  to  the 
members  of  the  tribunal  and  the  opposite  party  of  all  printed  or  written  acts  and 
of  all  documents  containing  the  grounds  relied  on  in  the  case.  This  communi- 
cation shall  be  made  in  the  form  and  within  the  time  fixed  by  the  tribunal  in 
accordance  with  Article  48. 

The  discussions  consist  in  the  oral  development  before  the  tribunal  of  the 
arguments  of  the  parties. 

Article  39 

Every  document  produced  by  one  party  must  be  communicated  to  the  other 
party. 

Article  40 

The  discussions  are  under  the  direction  of  the  president. 
They  are  only  public  if  it  be  so  decided  by  the  tribunal,  with  the  assent  of  the 
parties. 


856  THIRD  COMMISSION :  COMMITTEE  OF  EXAMINATION 

They  are  recorded  in  minutes  drawn  up  by  the  secretaries  appointed  by  the 
president.     These  minutes  alone  have  an  authentic  character. 

[51]  Article  41 

After  the  close  of  the  pleadings,  the  tribunal  is  entitled  to  refuse  discussion 
of  all  new  papers  or  documents  which  one  of  the  parties  may  wish  to  submit  to 
it  without  the  consent  of  the  other  party. 

Article  42 

The  tribunal  is  free  to  take  into  consideration  new  papers  or  documents  to 
which  its  attention  may  be  drawn  by  the  agents  or  counsel  of  the  parties. 

In  this  case,  the  tribunal  has  the  right  to  require  the  production  of  these 
papers  or  documents,  but  is  obliged  to  make  them  known  to  the  opposite  party. 

Article  43 

The  tribunal  can,  besides,  require  from  the  agents  of  the  parties  the  produc- 
tion of  all  papers,  and  can  demand  all  necessary  explanations.  In  case  of  refusal, 
the  tribunal  takes  note  of  it. 

Article  44 

The  agents  and  counsel  of  the  parties  are  authorized  to  present  orally  to  the 
tribunal  all  the  arguments  they  may  consider  expedient  in  defense  of  their  case. 

Article  45 

They  are  entitled  to  raise  objections  and  points.  The  decisions  of  the  tri- 
bunal on  these  points  are  final,  and  cannot  form  the  subject  of  any  subsequent 
discussion. 

Article  46 

The  members  of  the  tribunal  are  entitled  to  put  questions  to  the  agents  and 
counsel  of  the  parties,  and  to  ask  them  for  explanations  on  doubtful  points. 

Neither  the  questions  put,  nor  the  remarks  made  by  members  of  the  tribunal 
in  the  course  of  the  discussions  can  be  regarded  as  an  expression  of  opinion  by 
the  tribunal  in  general,  or  by  its  members  in  particular. 

Article  47 

The  tribunal  is  authorized  to  declare  its  competence  in  interpreting  the  com- 
promis  as  well  as  the  other  treaties  which  may  be  invoked  in  the  case,  and  in 
applying  the  principles  of  international  law. 

Article  48 

The  tribunal  is  entitled  to  issue  rules  of  procedure  for  the  conduct  of  the 
case,  to  decide  the  forms  and  time  in  which  each  party  must  conclude  its  argu- 
ments, and  to  arrange  all  the  formalities  required  for  dealing  with  the  evidence. 

Article  49 

When  the  agents  and  counsel  of  the  parties  have  submitted  all  the  explana- 
tions and  evidence  in  support  of  their  case,  the  president  pronounces  the  discus- 
sion closed. 


ANNEXES  857 

Article  50 

The  deliberations  of  the  tribunal  take  place  in  private. 

Every  decision  is  taken  by  a  majority  of  the  members  of  the  tribunal. 

The  refusal  of  a  member  to  vote  must  be  recorded  in  the  minutes. 

Article  51 

The  award,  given  by  a  majority  of  votes,  must  state  the  reasons  on  which  it 
is  based.     It  is  drawn  up  in  writing  and  signed  by  each  member  of  the  tribunal. 

Those  members  who  are  in  the  minority  may  record  their  dissent  when 
signing. 

Article  52 

The  award  is  read  out  at  a  public  sitting  of  the  tribunal,  in  the  presence  of 
the  agents  and  counsel  of  the  parties  or  upon  their  being  duly  summoned  to 
attend. 

Article  53 

The  award,  duly  pronounced  and  notified  to  the  agents  of  the  parties  at  vari- 
ance, settles  the  dispute  definitively  and  without  appeal. 

[52]  Article  54 

The  parties  can  reserve  in  the  compromis  the  right  to  demand  the  revision 
of  the  award. 

In  this  ease,  and  unless  there  be  an  agreement  to  the  contrary,  the  demand 
must  be  addressed  to  the  tribunal  which  pronounced  the  award.  It  can  only  be 
made  on  the  ground  of  the  discovery  of  some  new  fact  which  is  of  a  nature  to 
exercise  a  decisive  influence  upon  the  award  and  which,  at  the  time  the  tribunal 
entered  its  decree,  was  unknown  to  the  tribunal  and  to  the  party  demanding  the 
revision. 

'  Proceedings  for  revision  can  only  be  instituted  by  a  decision  of  the  tribunal 
expressly  recording  the  existence  of  the  new  fact,  recognizing  in  it  the  character 
described  in  the  preceding  paragraph,  and  declaring  the  demand  admissible  on  this 
ground. 

No  demand  for  revision  can  be  received  unless  it  is  formulated  within  three 
months  following  the  notification  of  the  award. 

(Proposal  of  Mr.  Asser:  The  parties  can  reseri'e  in  the  compromis  the 
right  to  demand  the  revision  of  the  award. 

In  this  case,  and  unless  there  he  an  agreement  to  the  contrary,  the  demand 
must  he  addressed  to  the  trihunal  zvhich  pronounced  the  award  and  only  on  the 
ground  of  the  discovery  of  some  new  fact  zvhich  is  of  a  nature  to  exercise  a  deci- 
sive influence  upon  the  atvard  and  which,  at  the  time  the,  trihunal  entered  its  decree, 
was  unknown  to  the  trihunal  and  to  the  party  demanding  the  revision. 

Proceedings  for  revision  can  only  he  instituted  h\  a  decision  of  the  tribunal 
expressly  recording  the  existence  of  the  new  fact,  recognising  in  it  the  character 
described  in  the  preceding  paragraph,  and  declaring  the  demand  admissible  on  this 
ground. 

No  demand  for  revision  can  be  received  unless  it  is  formulated  within  six 
months  following  the  notification  of  the  award.) 


858  THIRD  COMMISSION:  COMMITTEE  OF  EXAMINATION 

Article  55 

The  award  is  binding  only  on  the  parties  who  concluded  the  compromis. 

When  there  is  a  question  as  to  the  interpretation  of  a  convention  to  which 
Powers  other  than  those  in  dispute  are  parties,  the  latter  notify  to  the  former  the 
compromis  they  have  concluded.  Each  of  these  Powers  is  entitled  to  intervene  in 
the  case.  If  one  or  more  avail  themselves  of  this  right,  the  interpretation  con- 
tained in  the  award  is  equally  binding  on  them. 

Article  56 

Each  party  pays  its  own  expenses  and  an  equal  share  of  the  honoraria  of  the 
arbitrators  and  of  the  expenses  of  the  tribunal. 


Annex  11 

[53] 
PROPOSAL  OF  MR.  ASSER,  DELEGATE  OF  THE  NETHERLANDS 

{To  he  inserted  after  Article  24  of  the  draft  arbitral  code) 

The  award  is  binding  only  on  the  parties. 

If  there  is  a  question  as  to  the  interpretation  of  a  convention  concluded  by  a 
larger  number  of  States  than  those  between  which  the  dispute  has  arisen,  the 
latter  will  notify  to  the  other  signatory  States  the  compromis  which  they  will 
sign  and  each  of  the  signatory  States  will  be  entitled  to  intervene  in  the  arbitral 
litigation.  If  one  or  more  of  these  States  avail  themselves  of  this  right,  the 
interpretation  of  the  convention  contained  in  the  award  will  be  equally  binding 
for  them. 


INDEX 


INDEX  OF  PERSONS 


For  list  of  the  delegates  grouped  by  countries,  see  final  act,  pages  228-234. 


Abdullah  Pasha,  General,  delegate  of  Turkey, 
7;  vice  president  of  first  subcommission  of 
first  commission,  21,  23;  member  of:  first 
commission,  24,  second  commission,  25 ;  ex- 
panding bullets,  339,  344;  limitation  of 
armaments,  335. 

Aghiah  Bey,  assistant  head  of  the  bureau  of 
translation  of  the  Turkish  ministry  for  for- 
eign affairs,  secretary  of  the  Turkish  dele- 
gation, 7. 

Alexander  I,  Emperor  of  Russia,  regarding 
disarmaments,  272,  299. 

Alexander  II,  Emperor  of  Russia,  initiator  of 
the  Brussels  conference,  224,  272,  505. 

Ardagh,  Sir  John  Charles,  delegate  of  Great 
Britain,  3;  vice  president  of  first  subcom- 
mission of  first  commission,  21,  23;  member 
of:  first  commission,  23,  second  commission, 
24,  special  technical  committee  on  Russian 
proposals  respecting  limitation  of  land 
forces  and  military  budgets,  89,  358;  dum- 
dum bullets,  276,  278,  279,  298,  332;  ex- 
panding bullets,  87,  338,  343;  land  warfare, 
485,  489,  538,  544,  550,  553,  555,  556,  558; 
limitation  of  armaments,  334,  352,  356;  pro- 
jectiles from  aircraft,  280;  regulations  on 
land  warfare,  517,  519. 

Ariga,  Nagao,  delegate  of  Japan,  4;  member 
of:  second  commission,  24,  third  commis- 
sion, 25 ;   land  warfare,  557. 

Artom,  Ernest,  Italian  attache  of  legation,  as- 
sistant secretary  of  the  Italian  delegation,  4. 

Asser,  Tobias  Michael  Carel,  delegate  of  the 
Netherlands,  4;  assistant  president  of  second 
commission,  21,  24;  president  of:  drafting 
committee  of  final  act,  31,  102,  107  note,  first 
subcommission  of  the  second  commission, 
46;  member  of  third  commission,  25,  and 
its  committee  of  examination,  106  note,  585; 
arbitration  procedure,  613,  704,  17)2,  733, 
734,  735,  739,  740,  743,  748,  858;  Geneva 
convention,  revision  of,  46,  393,  394,  472; 
good  offices  and  mediation,  589,  648,  691, 
692,  693;  international  arbitration,  700; 
international  commissions  of  inquiry,  673, 
121,  729,  731,  774,  782,  791,  792;  mari- 
time warfare  and  the  Geneva  convention, 
389,  390,  445,  446,  447,  449,  450,  452,  456,  457, 
459,  460,  463,  470,  471,  473;  obligatory  arbi- 
tration, 702,  703,  769;  permanent  court  of 
arbitration,  607,  608.  652.  653,  655.  675, 
713,  718,  721.  722.  726  757,  761,  765,  lid, 
111,  783,  785,  787,  788,  796;  proposal  amend- 
ing the  Russian  draft  of  arbitral  code,  858; 
revision  of  arbitral  award,  617,  618,  624, 
679,  741,  742,  749,  752,  753,  754,  755;  speech 
on  provisions  for  adhesion  to  pacific  settle- 
ment convention,  216. 


Baguer,  Arturo  de,  delegate  of  Spain,  2; 
member  of  second  commission,  24;  limita- 
tion  of   armaments,   378. 

Barantzew,  Count,  delegate  of  Russia,  5 ; 
member  of:  first  commission,  23,  second  com- 
mission, 24;  expanding  bullets,  339;  limita- 
tion of  armaments,  2)2)1,  344. 

Baude,  Baron,  548. 

Basily,  A.,  delegate  of  Russia,  5;  member  of: 
first  commission,  23,  third  commission,  25, 
commission  in  charge  of  correspondence, 
218;  international  commissions  of  inquiry, 
728. 

Beaufort,  Willem  Hendrik  de,  Netherland 
minister  for  foreign  affairs,  honorary 
president  of  the  conference,  8;  address 
at  opening  of  conference,  13,  at  closing 
of  conference,  226;  circular  of,  639, 
641. 

Beernaert,  Auguste  M.  J.,  delegate  of  Bel- 
gium, 1 ;  president  of  first  commission,  21, 
23;  member  of  second  commission,  24;  ad- 
dress, 272;  declaration  of  Brussels,  502;  ex- 
panding bullets,  279,  ZZ2,  344;  good  offices 
and  mediation,  589,  591 ;  land  warfare, 
475,  476,  477,  478,  482,  483,  484,  485,  487, 
488,  490,  491,  492,  493,  494,  495,  500,  501, 
502,  509,  510,  511,  512,  513.  514,  515,  519, 
520,  521,  523,  524,  526,  529,  531,  533,  536, 
537,  538,  539,  540,  541,  542,  545,  548,  554, 
555,  557,  559;  limitation  of  armaments,  299, 
331,  341,  347,  353,  report  of  second  subcom- 
mission of  first  commission  on,  320;  work  of 
first  commission,  273. 

Beer  Poortugael,  Jacobus  Catharinus  Cornells 
den,  delegate  of  the  Netherlands,  4;  re- 
porter of  military  subcommission  of  first 
commission,  284;  member  of:  first  commis- 
sion, 23,  second  commission,  24;  expanding 
bullets,  82,  86,  278,  279,  332,  339;  land  war- 
fare, 410,  483,  486,  487,  488,  493,  494,  509, 
511,  512,  549,  554;  limitation  of  armaments, 
301,  312,  326,  331,  Z12,  337,  344,  345,  349, 
352,  report  on,  284;  projectiles  from  air- 
craft, 280,  341,  342. 

Beldiman,  Alexandre,  delegate  of  Roumania, 
5;  member  of:  first  commission,  23,  second 
commission,  24,  and  drafting  committee  of 
its  second  subcommission,  51  note,  416  note, 
525,  third  commission,  25 ;  asphyxiating 
gases,  324;  expanding  bullets,  324,  339; 
Geneva  convention,  revision  of,  393,  394, 
408;  good  offices  and  mediation,  589,  591, 
649;  international  arbitration,  604,  650,  651; 
international  commissions  of  inquiry,  603, 
626,  642,  643,  646,  669,  671,  793;  land  war- 
fare, 101,  410,  490,  497,  521,  531,  537,  538, 
554,  557,  558;  limitation  of  armaments,  283; 


861 


862 


INDEX  OF  PERSONS 


Beldiman,    Alexandre    (continued) 

maintenance  of  general  peace,  647;  obliga- 
tory arbitration,  652,  658;  pacific  settle- 
ment, reservation,  651;  permanent  court  of 
arbitration,  609,  658;  procedure  of  minutes, 
22;  projectiles  from  aircraft,  281. 

Bianco,  Chevalier  Auguste,  delegate  of  Italy, 
4;  member  of:  first  commission,  23,  second 
commission,  24;  maritime  warfare  and  the 
Geneva  convention,  457. 

Bihourd,  Georges,  delegate  of  France,  3; 
member  of  first  commission,  23;  land  war- 
fare, 490,  493,  508,  520,  523,  557;  limitation 
of  armaments,  339;  projectiles  from  aircraft, 
281. 

Bildt,  Baron  Carl  Nils  Daniel,  delegate  of 
Sweden  and  Norway,  6;  member  of  third 
commission,  26;  amendment  to  final  act,  105; 
arbitration  procedure,  611,  612;  interna- 
tional commissions  of  inquiry,  673;  land 
warfare,  413,  414,  497,  513,  520,  524,  554; 
limitation  of  armaments,  316;  maritime  war- 
fare and  the  Geneva  convention,  470,  471, 
472;  permanent  court  of  arbitration,  654, 
656,  777,  778;  procedure  of  minutes,  22; 
revision  of  arbitral  award,  625,  679;  sys- 
tem of  arbitration,  774,  775. 

Bille,  Fr.  E.,  delegate  of  Denmark,  2;  vice 
president  of  third  commission,  22,  25 ; 
member  of:  first  commission,  23,  second 
commission,  24;  asphyxiating  gases,  366; 
expanding  bullets,  85,  87;  land  warfare, 
541,  544,  554;  limitation  of  armaments,  284, 
317,  321,  364,  370,  372;  shore  ends  of  ca- 
bles, 101. 

Birileff,  Mr.,  secretary  of  the  Russian  technical 
naval  delegate,  6. 

Blanc,  Baron,  548. 

Boppe,  A.,  French  secretary  of  embassy,  sec- 
retary of  the  French  delegation,  3. 

Bourgeois,  Leon  Victor  Auguste,  delegate  of 
France,  3;  president  of:  drafting  committee 
of  second  subcommission  of  second  commis- 
sion, 561,  third  commission,  22,  25,  and  of  its 
committee  of  examination,  106  note;  arbitra- 
tion procedure,  616,  666,  667,  678,  737,  738, 
739,  743,  746,  752;  asphyxiating  gases,  324; 
expanding  bullets,  324;  good  offices  and 
mediation,  590,  648,  649,  691,  695 ;  interna- 
tional commissions  of  inquiry,  645,  671,  673, 
674,  782,  792,  793;  land  warfare,  414,  511, 
514,  532,  537,  538,  539,  553;  limitation  of 
armaments,  317,  319,  326;  naval  bom- 
bardment, 49;  obligatory  arbitration,  706, 
707,  769,  771 ;  permanent  court  of  arbitra- 
tion, 610,  656,  662,  709,  715,  721,  723,  756, 
757,  758,  763,  764,  788,  796,  797;  private 
property  at  sea,  413;  regarding  the  signing 
of  declarations  and  conventions,  213 ;  re- 
vision of  arbitral  award,  742,  753,  754; 
work  of  third  commission,  583. 

Brandstrom,  Colonel  P.  H.  E.,  delegate  of 
Sweden,  6;  member  of:  first  commission,  23, 
second  commission,  25,  special  technical 
committee  on  Russian  proposals  regard- 
ing  limitation  of   land   forces   and   military 


budgets,    89,    358;    expanding    bullets,    339. 

Broglie,  Duke  of,  227. 

Bruns,   Surgeon,  279. 

Buol-Schouenstein,  Count,  Austrian  represent- 
ative at  the  congress  of  Paris  of  1856,  191, 
192. 

Castilho,  Captain  Augusto  de,  delegate  of 
Portugal,  5;  member  of:  first  commission, 
23,   second  commission,   24. 

Cherif  Bey,  assistant  to  legal  councillors  of 
the  Sublime  Porte,  secretary  of  the  Turkish 
delegation,   7. 

Clarendon,  Earl  of,  British  plenipotentiary  at 
the  congress  of  Paris  of  1856,  171,  191,  192; 
note  respecting  the  Geneva  additional  arti- 
cles of  1868,  33,  38  note. 

Coanda,  Colonel  Constantin,  delegate  of  Rou- 
mania,  5;  member  of:  first  commission,  23, 
second  commission,  24,  special  technical 
committee  on  Russian  proposals  regarding 
limitation  of  land  forces  and  military  bud- 
gets, 89,  358;  expanding  bullets,  87,  339, 
356;  land  warfare,  490;  limitation  of  arma- 
ments, 372;  projectiles  from  aircraft,  281. 

Court,  Lieutenant  Colonel  Charles  a,  delegate 
of  Great  Britain,  3;  member  of:  first  com- 
mission, 23,  second  commission,  24,  and 
drafting  committee  of  its  first  and  second 
subcommissions,  31  note,  51  note,  395  note, 
416  note,  525. 

Crespo,  Mr.,  Spanish  secretary  of  embassy, 
secretary  of  the   Spanish  delegation,  2. 

Crozier,  Captain  William,  delegate  of  United 
States,  2;  member  of:  first  commission,  23, 
second  commission,  24,  special  technical  com- 
mittee on  Russian  proposition  regarding 
limitation  of  land  forces  and  military  bud- 
gets, 89;  expanding  bullets.  79,  83,  85,  87, 
278,  279,  298,  338;  guns,  282,  332,  333,  343; 
land  warfare,  521,  536,  555,  558;  private 
property  at  sea,  491,  492,  493;  projectiles 
from  aircraft,  280,  353,  355. 

Cunha,  Jose  Ribeiro  da,  Portuguese  first  secre- 
tary of  legation,  secretary  of  the  Portuguese 
delegation,  5. 

Delyanni,  N.  P.,  delegate  of  Greece,  3 ;  mem- 
ber of  third  commission,  25 ;  expanding  bul- 
lets, 213;  good  offices  and  mediation,  588, 
593 ;  international  commissions  of  inquiry, 
637,  669,  672,  792,  793;  limitation  of  arma- 
ments, 319;  maritime  warfare  and  the 
Geneva  convention,  31. 

Derby,  Lord,  517. 

Descamps,  Edouard  Frangois  Eugene,  Baron, 
delegate  of  Belgium,  1 ;  president  and  re- 
porter of  committee  of  examination  of  third 
commission,  106  note,  586,  593,  687;  member 
of:  second  commission,  24,  third  commission, 
25,  drafting  committee  of  final  act,  31,  102, 
107  note;  adhesion  to  pacific  settlement  con- 
vention, 766 ;  arbitration  conventions,  775 ; 
arbitration  procedure,  611,  615,  616,  666, 
675.  676.  678.  679.  732,  733,  734,  736, 
737,  738,  741,  743,  748;  essay  on  arbitration. 


INDEX  OF  PERSONS 


863 


Descamps,  E.  F.  E.,  Baron  (continued) 
584;  general  provisions,  218;  general  sur- 
vey of  the  clauses  of  mediation  and  arbi- 
tration affecting  the  powers  represented  at 
the  conference,  191 ;  good  offices  and  media- 
tion, 587,  589,  591,  648,  _  688,  691,  692, 
693;  international  commissions  of  inquiry, 
639,  644,  670,  673,  728,  731,  765,  781,  791, 
792;  land  warfare,  485,  488,  494,  495,  496, 
497,  501,  502,  510,  511,  512,  530,  545;  main- 
tenance of  general  peace,  647;  maritime 
warfare  and  the  Geneva  convention,  390; 
obligatory  arbitration,  702,  703,  707,  768, 
770 ;  permanent  court  of  arbitration,  605, 
606,  607,  608,  610,  652,  653,  654,  655,  656, 
657,  665,  712,  714,  715,  717,  718,  719,  720, 
721,  722,  723,  724,  725,  755,  756,  758,  763, 
764,  776,  777,  784,_  785,  786,  787,  788,  796, 
797;  report  on  pacific  settlement  of  interna- 
tional disputes,  106;  report  on  work  of  the 
committee  of  examination  relating  to  arbi- 
tration, good  offices  and  mediation,  and  in- 
ternational commissions  of  inquiry,  593,  594; 
revision  of  arbitral  award,  623,  742,  749, 
750,  754;  scope  of  work  of  committee  of 
examination  of  third  commission,  731. 

Dittlinger,  C.  E.,  technical  secretary  of  the 
conference,  lieutenant  of  the  Royal  Navy,  8. 

Djevad  Bey,  Lieutenant  Colonel,  secretary  of 
the  Turkish  delegation,  7. 

Erckert,  d',  German  secretary  of  legation; 
assistant  to  the  secretariat  of  the  confer- 
ence, 8. 

Estournelles  de  Constant,  Paul  Henri  Benja- 
min, Baron,  d',  delegate  of  France,  3;  vice 
president  of  third  commission,  22,  25,  and 
secretary  of  its  committee  of  examination, 
106  note,  586,  687 ;  international  commis- 
sions of  inquiry,  728,  729,  774,  781,  794; 
obligatory  arbitration,  702,  703 ;  permanent 
court  of  arbitration,  658,  726,  758,  759, 
761,  762,  763,  764,  776,  778;  wish  for  future 
conferences,  226. 

Eys,  Jonkheer,  J.  C.  N,  van,  resident  minister 
of  Her  Majesty  the  Queen  of  the  Nether- 
lands, secretary  general  of  conference,  8. 

Eyschen,  Paul,  delegate  of  Luxemburg,  4; 
member  of:  second  commission,  24,  third 
commission,  25,  commission  in  charge  of 
correspondence,  218;  international  commis- 
sions of  inquiry,  643,  644,  645,  790,  791, 
793;  land  warfare,  501,  514,  536,  543; 
permanent  court  of  arbitration,  605 ;  rights 
and  duties  of  neutral  States  on  land,  495, 
496,  497,  498;  rights  of  Luxemburg  under 
treaty  of  London,  212,  499. 

Fasciotti,  Baron,  Charles,  Italian  attache  of 
embassy,  assistant  secretary  of  the  Italian 
delegation,   4. 

Fauchille,   Paul,  458. 

Fisher,  Sir  John  A.,  delegate  of  Great  Britain, 
3;  vice  president  of  second  subcommission 
of  first  commission,  21,  23;  member  of:  first 
commission,  23,  second  commission,  24,  and 


drafting  committee  of  its  first  subcommis- 
sion, 31  note,  395  note;  asphyxiating  gases, 
367;  limitation  of  armaments,  360,  364,  368^ 
378;  maritime  warfare  and  the  Geneva  con- 
vention, 470. 

Gilinsky,  Colonel,  delegate  of  Russia,  5 ; 
member  of:  first  commission,  23,  second 
commission,  24,  and  drafting  committee  of 
its  second  subcommission,  51  note,  416  note, 
525,  special  technical  committee  on  Russian 
proposals  regarding  limitation  of  land 
forces  and  military  budgets,  89,  358;  as- 
phyxiating gases,  324;  expanding  bullets, 
83,  86,  278,  279,  298,  324,  325,  338,  344; 
Geneva  convention,  revision  of,  385 ;  land 
warfare,  477,  478,  487,  490,  494,  510,  511, 
512,  516,  553;  limitation  of  armaments,  282, 
302,  305,  307,  310,  315,  331,  337,  339,  340, 
341,  342,  352,  353,  356,  3'^7;  projectiles 
from  aircraft,  86,  280;  proposition  regard- 
ing limitation  of  armaments  rejected,  315. 

Gourko-Romeiko,  N.  A.,  Russian  second  sec- 
retary of  embassy,  secretary  of  the  Russian 
delegation,  6. 

Grelle  Rogier,  Count  de,  delegate  of  Belgium, 
1;  secretary  of  conference,  8;  member  of: 
first  commission,  23,  second  commission,  24, 
third  commission,  25 ;  limitation  of  arma- 
ments, 333 ;  maritime  warfare  and  the  Ge- 
neva convention,  29,  390,  465,  469,  470; 
mediation  and  arbitration,  212;  permanent 
court  of  arbitration,  606,  653. 

Gross  von  Schwarzhoff,  Colonel,  delegate  of 
Germany,  1;  member  of:  first  commission, 
23,  second  commission,  24,  and  drafting 
committee  of  its  second  subcommission, 
51  note,  416  note,  525,  third  commission,  25, 
special  technical  committee  on  Russian  pro- 
posals of  limitation  of  land  forces  and  mili- 
tary budgets,  89,  358;  expanding  bullets, 
279,  298,  338;  land  warfare,  414,  478,  479, 
483,  484,  485,  486,  487,  488,  489,  490,  491, 
494,  495,  501,  509,  510,  511,  512,  515,  520, 
521,  528,  529,  532,  537,  538,  539,  541,  552, 
555,  557,  558,  559;  limitation  of  armaments, 
282,  308,  310,  326,  341,  345,  351,  353;  pro- 
jectiles from  aircraft,  281,  342. 

Hagiwara,  Mr.,  secretary  of  the  Japanese  del- 
egation,  4. 

Hamilton,  Ronald  James,  third  secretary  of 
the  British  delegation,  3. 

Hammer,  Colonel,  land  warfare,  553. 

Hayashi,  Baron  Tadasu,  delegate  of  Japan„ 
4;   member  of  third   commission,  25. 

Hessaptchieff,  Major  Christo,  delegate  of  Bul- 
garia, 7;  member  of  first  commission,  24; 
expanding  bullets,  339;  limitation  of  arma- 
ments, 345,  356. 

Hessen,  Mr.,  head  of  the  bureau  of  the  im- 
perial Russian  ministry  of  justice,  secretary 
of  the  Russian  delegation,  6. 

Hjulhammar,  Captain,  C.  A.  M.  de,  delegate 
of  Sweden,  6;  member  of  first  commission, 
23;  limitation  of  armaments,  364,  369, 


864 


INDEX  OF  PERSONS 


Holls,  Frederick  W.,  delegate  of  United  States, 
2;  member  of:  third  commission,  25,  and 
its  committee  of  examination,  106  note,  585; 
arbitration  procedure,  655,  675,  676,  733, 
735,  746,  748;  international  commissions  of 
inquiry,  644,  727,  728,  780,  781,  794;  obliga- 
tory arbitration,  702,  703,  707,  770;  perma- 
nent court  of  arbitration,  661,  698,  715,  718, 
720,  721,  722,  723,  724,  726,  756,  757,  758, 
761,  762,  763,  764,  776,  783,  786,  788,  795, 
796,  797;  revision  of  arbitral  award,  620, 
625,  741,  742,  749,  750,  751,  753,  754,  755; 
special  mediation,  188,  588,  694,  696,  697, 
833,  836. 

Romberg,  O.,  French  attache  of  embassy,  sec- 
retary of  the  French  delegation,  3. 

Houette,  Captain,  maritime  warfare  and  the 
Geneva  convention,  456. 

Ho  Yen-cheng,   delegate   of  China,   2. 

Hoo  Wei-teh,  delegate  of  China,  2;  member  of: 
second  commission,  24,  third  commission,  25. 

Howard,  Sir  Henry,  delegate  of  Great  Britain, 
3;  member  of  third  commission,  25. 

Jarousse  de  Sillac,  Max,  French  attache  of 
embassy,  secretary  of  the  French  delegation, 
3 ;  secretary  of  conference,  8 ;  assistant  sec- 
retary to  committee  of  examination  of  third 
commission,  106  note,  687. 

Jayasurindr,  Phra,  attache  of  the  Siamese  del- 
egation, 6. 

Jomini,  Baron,   548. 

Joostens,  Maurice,  Belgian  counselor  of  lega- 
tion, secretary  of  the  Belgian  delegation,  1. 

Karnebeek,  Jonkheer,  A.  P.  C.  van,  delegate 
of  Netherlands,  4;  assistant  president  of 
first  commission,  21,  23;  assistant  to  the 
secretariat  of  the  conference,  vice  president 
of  conference,  8;  president  of  commission  in 
charge  of  correspondence,  218;  reporter  of 
first  commission,  322 ;  member  of  third  com- 
mission, 25,  and  participated  in  work  of  its 
committee  of  examination,  106  note ;  ad- 
hesion to  convention  concerning  the  laws  and 
customs  of  war  on  land,  415 ;  asphyxiating 
gases,  79,  283,  324,  325,  366;  expanding 
bullets,  79,  82,  324,  325 ;  international  com- 
missions of  inquiry,  780,  781 ;  land  war- 
fare, 414,  511,  521,  522,  523,  524,  527,  528, 
529,  531,  533,  539,  554;  limitation  of  arma- 
ments, 281,  282,  311,  359,  360,  361,  363,  364, 
365,  367,  368,  370,  372,  373,  377,  378;  obliga- 
tory arbitration,  768,  769,  770;  pacific  set- 
tlement convention,  adhesion,  765,  771 ; 
permanent  court  of  arbitration,  606,  756, 
784,  785,  786,  787,  797;  projectiles  from  air- 
craft, 79,  324,  325;  revision  of  arbitral 
award,  625,  750. 

Khuepach  zu  Reid,  Victor  von,  delegate  of 
Austria-Hungary,  1;  member  of:  first  com- 
mission, 23,  second  commission,  24,  special 
technical  committee  on  Russian  proposals  re- 
specting limitation  of  land  forces  and  mili- 
tary budgets,  89,  358;  expanding  bullets, 
338,  343,  344;  land  warfare,  477,  484,  500, 
527,  536;  projectiles  from  aircraft,  280. 


Konow,  W.,  delegate  of  Norway,  6;  member 
of  third  commission,  26. 

Kreyer,  Dr.,  Chinese  counselor  of  legation  and 
interpreter,  2. 

Kiinzli,  Colonel  Arnold,  delegate  of  Switzer- 
land, 6;  member  of:  first  commission,  24; 
third  commission,  26;  expanding  bullets, 
332,  338,  339;  land  warfare,  538,  539,  550, 
553,  554;  limitation  of  armaments,  305. 

Lahovari,  John,  minister  of  foreign  affairs 
of  Roumania;  instructions  for  the  Rouma- 
nian delegates  regarding  their  participation 
in   work  of  the   conference,   627. 

Lambermont,  Baron,  548. 

Lammasch,  Heinrich,  delegate  of  Austria- 
Hungary,  1;  member  of:  second  commis- 
sion, 24,  committee  of  examination  of  third 
commission,  106  note,  585,  drafting  com- 
mittee of  second  subcommission  of  second 
commission,  51  note,  416  note,  525;  arbitra- 
tion procedure,  676,  678,  732,  734,  738,  743; 
good  offices  and  mediation,  648,  649,  692 ; 
international  arbitration,  700,  775 ;  interna- 
tional commissions  of  inquiry,  644,  671,  727, 
731,  774,  780,  782,  792,  794;  land  warfare, 
476,  477,  480,  482,  488,  491,  494,  502,  512, 
515,  521,  529,  537,  544;  obligatory  arbitra- 
tion, 702,  706,  771 ;  permanent  court  of  arbi- 
tration, 653,  656,  715,  721,  757,  763,  776,  796. 

Leer,  General,  548. 

Legendre,  Louis,  assistant  secretary  of  the 
French  delegation,  3. 

Legrand,  Albert,  secretary  of  conference,  8, 
French  secretary  of  embassy,  secretary  of 
the  French  delegation,  3. 

Leo  XIII,  Pope,  letter  to  the  Queen  of  the 
Netherlands,  222. 

Levi,  Baron,  G.  de,  secretary  of  the  Persian 
delegation,   5. 

Lou  Tseng-tsiang,  delegate  of  China,  2;  mem- 
ber of:  second  commission,  24,  third  com- 
mission, 25;  regarding  the  signing  of  decla- 
rations  and   conventions,   213. 

Low,  Seth,  delegate  of  United  States,  2;  mem- 
ber of:  third  commission,  25,  drafting  com- 
mittee of  final  act,  50,  102,  107  note;  arbi- 
tration procedure,  668;  expanding  bullets, 
87;  revision  of  arbitral  award,  624. 

Macedo,  Count  de,  delegate  of  Portugal,  5 ; 
vice  president  of  third  commission,  22,  25 ; 
asphyxiating  gases,  326,  328;  expanding 
bullets,  86,  87,  279,  324;  good  offices  and 
mediation,  589;  international  arbitration, 
99;  international  commissions  of  inquiry, 
672;  land  warfare,  414;  limitation  of  arma- 
ments, 283,  378;  maritime  warfare  and  the 
Geneva  convention,  27,  99,  391,  414; 
permanent  court  of  arbitration,  605,  607, 
652,  654,  783,  784,  785 ;  regarding  the  sign- 
ing of  declarations  and  conventions,  214. 

MacGrath,  Thomas  M.,  secretary  of  the  Amer- 
ican delegation,  2. 

Mahan,  Captain  Alfred  T.,  delegate  of  United 
States,  2;  member  of:  first  commission,  23, 
second   commission,   24;    armor   plate,   363, 


INDEX  OF  PERSONS 


865 


Mahan,  Captain  Alfred  T.  (continued) 
364;  asphyxiating  gases,  283,  284,  324,  325, 
326,  328,  366,  375;  cannons,  359,  360,  372; 
expanding  bullets,  86,  324,  325;  Geneva 
convention,  revision  of,  408;  limitation  of 
armaments,  327,  378;  maritime  warfare  and 
the  Geneva  convention,  88,  391,  445,  461, 
462,  464,  468;  projectiles  from  aircraft,  325; 
vessels  with  ram,  368. 

Manteuffel,  Baron,  Prussian  representative  at 
the  congress  of  Paris  of  1856,  191. 

Martens,  Fedor  Fedorovich,  delegate  of  Rus- 
sia, 5;  president  of:  second  commission,  21, 
24,  its  subcommission,  383,  and  drafting 
committee  of  second  subcommission,  51 
note,  416  note,  525;  member  of:  third 
commission,  25,  and  its  committee  of  ex- 
amination, 106  note,  585,  drafting  com- 
mittee of  final  act,  31,  102,  107  note;  arbi- 
tration  procedure,   183,   612,   613,  615,   616, 

617,  733,  734,  738,  739,  740,  746,  748; 
asphyxiating  gases,  324;  declaration  con- 
cerning land  warfare,  547,  554;  declaration 
of  Brussels,  505,  518;  expanding  bullets, 
324;  Geneva  convention,  revision  of,  393, 
394;  good  offices  and  mediation,  589,  592, 
690,  691,  695;  international  arbitration,  701, 
775;  international  commissions  of  inquiry, 
640,  644,  730,  731,  780,  781,  782,  790,  792, 
793;  land  warfare,  410,  411,  414,  475, 
476,  484,  501,  502,  516,  522,  527,  530,  532, 
546,  547,  551,  554;  obligatory  arbitration, 
702,  703,  706,  707,  768,  771;  on  the  con- 
vention concerning  the  laws  and  customs  of 
war  on  land,  413;  pacific  settlement  con- 
vention, adhesion,  771 ;  permanent  court  of 
arbitration,  653,  656,  714,  717,  722,  723,  758, 
763,  765,  775,  777,  784,  786,  787;  private 
property  at  sea,  411,  412,  413;  procedure  of 
minutes,    22 ;    revision    of    arbitral    award, 

618,  623,  741,  750,  753,  754,  755;  special 
mediation,  697;  <vaux  to  be  submitted  to 
conference,  45,  46. 

Maschine,  Colonel,  delegate  of  Serbia,  6; 
member  of  first  commission,  23;  expanding 
bullets,  339. 

Maxwell,  Richard  Ponsonby,  first  secretary 
of  the  British  delegation,  3. 

Mehemed  Pasha,  R.,  delegate  of  Turkey,  7; 
member  of:  first  commission,  24,  second  com- 
mission, 25 ;  limitation  of  armaments,  365,  371. 

Mercati,  Alexandre,  secretary  of  the  Greek 
minister,  3. 

Merey  von  Kapos-Mere,  Cajetan,  delegate  of 
Austria-Hungary,  1  ;  vice  president  of  third 
commission,  22,  25 ;  member  of  drafting 
committee,  50,  l02,  l07  note,  commission  in 
charge  of  correspondence,  218. 

Mier,  A.  de,  delegate  of  Mexico,  3;  member 
of:  second  commission,  24,  third  commission, 

25-      .  . 

Miyatovitch,  Chedomille,  delegate  of  Serbia, 
6;  member  of:  second  commission,  25,  third 
commission,  26;  good  offices  and  mediation, 
650;  international  commissions  of  inquiry, 
603,  669,  673\  limitation  of  armaments,  314, 
352. 


Morrison,  Thomas,  secretary  of  the  American 
delegation,  2. 

Motono,  Ichiro,  delegate  of  Japan,  4;  member 
of:  second  commission,  24,  third  commission, 
25;  expanding  bullets,  339;  Geneva  con- 
vention, revision,  394;  land  warfare,  521, 
558;  maritime  warfare  and  the  Geneva  con- 
vention, 30,  452,  453,  456,  458,  459,  460,  462, 
463,  464,  468,  470,  471. 

Mounier,  General,  delegate  of  France,  3; 
vice  president  of  first  subcommission  of  first 
commission,  21,  23;  member  of:  first  com- 
mission, 23,  second  commission,  24,  and 
drafting  committee  of  its  second  subcom- 
mission, 51  note,  416  note,  special  technical 
committee  on  Russian  proposals  respecting 
limitation  of  land  forces  and  military  bud- 
gets, 89,  358;  expanding  bullets,  87,  338, 
339;  land  warfare,  486,  489,  490,  500,  501, 
502,  509;  limitation  of  armaments,  344;  pro- 
jectiles from  aircraft,  280. 

Mouravieff,  Count  N.  V.,  Russian  minister  for 
foreign  affairs,  circular  note  of,  224,  299, 
306,  349,  358,  383,  444,  542,  627,  629,  639, 
640,  641. 

Miinster,  Count,  delegate  of  Germany,  1 ; 
honorary  president  of  first  commission,  21, 
23;  address  of  felicitation,  225. 

Nesselrode,  Count,  inviolability  of  private 
property  at  sea,  47. 

Newell,  Stanford,  delegate  of  United  States, 
2;  member  of  second  commission,  24. 

Nicholas  II,  Emperor  of  Russia,  acknowledg- 
ment of  condolence,  79;  initiator  of  the  con- 
ference, 15,  224,  228,  272,  627,  628,  638;  tel- 
egram of  congratulations  from  conference, 
14,   and   reply  thereto,   17. 

Nigra,  Count  Costantino,  delegate  of  Italy, 
4;  honorary  president  of  third  commission, 
22,  25 ;  participated  in  work  of  its  commit- 
tee of  examination,  106  note;  member  of 
drafting  committee  of  final  act,  31,  102,  107 
note ;  amendment  to  Russian  draft  regarding 
mediation  and  arbitration,  190,  817;  arbitra- 
tion conventions,  775 ;  arbitration  procedure, 
613,  615,  616,  735 ;  Geneva  convention,  re- 
vision of,  394;  good  offices  and  mediation, 
587,  588,  590,  591,  648,  691,  694,  836; 
international  commissions  of  inquiry,  671, 
780,  791,  793;  land  warfare,  409,  410,  413, 
486,  502,  509,  531,  555,  557;  obligatory  arbi- 
tration, 702,  703,  706,  707,  767,  769,  770; 
permanent  court  of  arbitration,  657,  659,  714, 
715,  717,  721,  722,  724.  726,  757,  758,  761, 
762,  763,  764,  783,  786,  788,  797;  private 
property  at  sea,  49;  regarding  the  sign- 
ing of  declarations  and  conventions, 
213 ;  revision  of  arbitral  award,  619, 
753. 

Nishi,  Mr.,  secretary  of  the  Japanese  delega- 
tion, 4. 

Noury  Bey,  Mehemed,  delegate  of  Turkey,  7; 
member  of:  second  commission,  25,  third 
commission,  26 ;  good  offices  and  mediation, 
650;  maritime  warfare  and  the  Geneva 
convention,  453,  454,  461,  472. 


S66 


INDEX  OF  PERSONS 


Odier,  Edouard,  delegate  of  Switzerland,  6; 
member  of:  second  commission,  25,  third 
commission,  26,  and  its  committee  of  exami- 
nation, 106  note,  585 ;  arbitration  procedure, 
733,  743;  Geneva  convention,  revision  of, 
393,  473;  good  offices  and  mediation,  692; 
international  arbitration,  701 ;  international 
commissions  of  inquiry,  780,  781,  792;  land 
warfare,  480,  481,  488,  490,  497,  513,  515, 
519,  520,  529,  536,  537,  539,  540,  541 ;  mari- 
time warfare  and  the  Geneva  convention, 
390,  447,  470;  obligatory  arbitration,  703, 
707,  770;  permanent  court  of  arbitration, 
661,  715,  723,  758,  761 ;  revision  of  arbitral 
award,  752;  rights  and  duties  of  neutrals, 
105,  497. 

Okolicsanyi  von  Okolicsna,  Alexander,  dele- 
gate of  Austria-Hungary,  1 ;  member  of 
third  commission,  25. 

Orelli,  C.  Corragioni  d',  delegate  of  Siam,  6; 
member  of:  first  commission,  23,  second 
commission,  25,  third  commission,  26;  mari- 
time warfare  and  the  Geneva  convention, 
390,  470,  472;  revision  of  arbitral  award, 
624. 

Orloff,  Count,  Russian  representative  at  the 
congress  of  Paris  of  1856,  192. 

Ornellas,  Captain  Ayres  d',  delegate  of  Portu- 
gal, 5 ;  member  of  first  commission,  23 ;  ex- 
panding bullets,  339;  limitation  of  arma- 
ments,  331. 

Ornellas  de  Vasconcellos,  Agostinho  d',  dele- 
gate of  Portugal,  5;  member  of  third  com- 
mission, 25 ;  good  offices  and  mediation, 
590,  594,  773;  international  commissions  of 
inquiry,  774;  permanent  court  of  arbitra- 
tion, 608. 

Ovtchinnikow,  Colonel,  delegate  of  Russia,  5 ; 
member  of:  first  commission,  23,  second 
commission,  24,  and  associate  member  of 
drafting  committee  of  its  first  subcommis- 
sion,  31  note,  395  note;  maritime  warfare 
and  the  Geneva  convention,  451,  453. 

Papiniu,  Jean  N.,  delegate  of  Roumania,  5 ; 
member  of:  second  commission,  24,  third 
commission,  25 ;  arbitration  procedure,  666, 
667;  maritime  warfare  and  the  Geneva 
convention,  445. 

Patijn,  J.  A.  N.,  attache  of  the  Siamese  dele- 
gation, 6. 

Pauncefote,  Sir  Julian,  delegate  of  Great  Bri- 
tain, 3 ;  honorary  president  of  third  com- 
mission, 22,  25 ;  participated  in  work  of  its 
committee  of  examination,  106  note;  absten- 
tion from  voting  on  <vaux,  105 ;  arbitration 
procedure,  676,  735,  736,  743 ;  asphyxiating 
gases,  326;  establishment  of  an  interna- 
tional permanent  court  of  arbitration,  186, 
188,  584,  585,  813 ;  expanding  bullets,  82,  87 ; 
Geneva  convention,  revision  of,  394,  409; 
good  offices  and  mediation,  692,  695 ;  in- 
ternational commissions  of  inquiry,  671,  674, 
728;  inviolability  of  private  property  at 
sea,  412;  obligatory  arbitration,  702,  706, 
769,  770;  permanent  court  of  arbitration, 
656,  674,  675,  698,  711,  714,  717,  720,  721, 


724,  725,  762,  765 ;  regarding  the  signing  of 
declarations  and  conventions,  213;  revision 
of  arbitral  award,  749,  753,  754,  755 ;  shore 
ends  of  cables,  100,  101 ;  <veeu  on  naval 
bombardment,  46,  49,  411. 

Peel,  Arthur,  second  secretary  of  the  British 
delegation,  3. 

Pephau,  Rear  Admiral,  delegate  of  France,  3; 
vice  president  of  second  subcommission  of 
first  commission,  21,  23;  member  of:  first 
commission,  23,  second  commission,  24; 
limitation  of  armaments,  359,  360,  361,  363, 
366,  368,  372,  373,  378;  maritime  warfare 
and  the  Geneva  convention,  445,  446,  451, 
AS3,  459,  460,  461. 

Pichon,  Baron,  lieutenant  of  cavalry,  assistant 
secretary  of  French  delegation,  3. 

PoliakofI,  Samuel  de,  secretary  of  the  Persian 
delegation,  5. 

Pompilj,  Guido,  delegate  of  Italy,  4;  vice 
president  of  third  commission,  22,  25 ;  mem- 
ber of:  second  commission,  24;  international 
arbitration,  650. 

Pop,  G.  J.  C.  A.,  captain  on  the  staff,  techni- 
cal secretary  of  the  conference,  8. 

Priklonsky,  Mr.,  gentleman  of  the  Chamber, 
head  of  the  division  of  the  first  department 
of  the  Russian  imperial  ministry  for  foreign 
affairs,  secretary  of  the  Russian  delega- 
tion, 5. 

Raff alovich.  A.,  delegate  of  Russia,  5 ;  assist- 
ant secretary  general  of  conference,  8;  sec- 
retary general  of  drafting  committee  of 
final  act,  31,  107  note,  secretary  of  special 
technical  committee  on  Russian  proposals 
regarding  limitation  of  land  forces  and 
military  budgets,  358;  member  of:  first  com- 
mission, 23 ;  third  commission,  25 ;  expand- 
ing bullets,  85,  87,  279,  298,  343,  344;  limi- 
tation of  armaments,  347,  353,  375 ;  pro- 
cedure of  minutes,  22;  projectiles  from  air- 
craft, 281. 

Rahusen,  Eduard  Nicholaas,  delegate  of  Neth- 
erlands, 4;  member  of:  third  commission, 
25;  arbitration  procedure,  616;  inviolability 
of  private  property  at  sea,  412;  land  war- 
fare, 483,  491,  553. 

Rappard,  Chevalier,  W.  de,  secretary  of  lega- 
tion of  the  Netherlands,  secretary  of  the  con- 
ference,  8. 

Rappe,  F.  de,  secretary  of  the  ministry  for 
foreign  affairs  of  Sweden  and  Norway,  sec- 
retary of  the  delegation  of  Sweden  and 
Norway,  6. 

Reedtz-Thott,  Otto,  Baron,  secretary  of  the 
Danish  ministry  for  foreign  affairs,  attache 
of  the  Danish  delegation,  2. 

Renault,  Louis,  delegate  of  France,  3 ;  re- 
porter of:  drafting  committee  of  final  act, 
31,  102,  107  note,  drafting  committee  of  first 
subcommission  of  second  commission,  31 
note,  395  note;  member  of:  third  commis- 
sion, 25,  drafting  committee  of  second  sub- 
commission  of  second  commission,  51  note, 
416  note,  525 ;  arbitration  procedure,  617, 
667;  final  act,  oral  report  to  conference  on, 


INDEX  OF  PERSONS 


867 


Renault,  Louis   (continued) 

101,  207,  215 ;  Geneva  convention,  revision 
of,  473 ;  good  offices  and  mediation,  773 ; 
land  warfare,  476,  541,  557;  maritime  war- 
fare and  the  Geneva  convention,  30,  444, 
445,  446,  447,  449,  450,  451,  452,  453,  456, 
457,  458,  459,  460,  461,  462,  463,  464,  465, 
467,  469,  470,  472,  473,  report  on,  31,  395; 
permanent  court  of  arbitration,  609,  657, 
783,  784,  785,  787. 

Riza  Khan,  General  Mirza  (Arfa-ud-Dovleh), 
delegate  of  Persia,  5;  member  of:  first  com- 
mission, 23,  second  commission,  24,  third 
commission,  25;  expanding  bullets,  339; 
land  warfare,  546;  maritime  warfare  and 
the  Geneva  convention,  388,  390;  tribute  to 
Emperor  Nicholas  II  and  Queen  Wilhel- 
mina,  305. 

Rochussen,  Jonkheer,  J.  J.,  assistant  chief  of 
the  bureau  of  the  Netherland  ministry  for 
foreign  affairs  at  The  Hague,  secretary  of 
conference,  8;  assistant  secretary  of  general 
drafting  committee,  107  note. 

Rolin  Jaequemyns,  Edouard,  delegate  of  Siam, 
6;  reporter  of:  second  subcommission  of 
second  commission,  475,  and  its  drafting  com- 
mittee, 51  note,  416  note,  525;  member  of: 
first  commission,  23,  second  commission,  25, 
third  commission,  26;  arbitration  procedure, 
616,  617,  667;  expanding  bullets,  87;  inter- 
national arbitration,  651;  international  com- 
missions of  inquiry,  638,  672,  780;  land 
warfare,  410,  413,  478,  480,  481,  483,  485, 
488,  489,  490,  491,  494,  511,  512,  515,  516, 
519,  520,  522,  523,  526,  531,  536,  540,  541, 
557,  558,  559;  report  on,  50,  415;  limitation 
of  armaments,  361 ;  maritime  warfare  and 
the  Geneva  convention,  391,  461,  464,  465; 
permanent  court  of  arbitration,  607,  777, 
778,  784,  786,  787. 

Roth,  Dr.  Arnold,  delegate  of  Switzerland,  6; 
vice  president  of  first  subcommission  of  sec- 
ond commission,  21,  24;  member  of:  second 
commission,  25,  third  commission,  26,  com- 
mittee in  charge  of  correspondence,  218; 
message  of  condolence  to,  586. 

Sakamoto,  Captain  Toshiatsu,  delegate  of 
Japan,  4;  member  of  second  commission,  24; 
limitation  of  armaments,  359,  363,  368,  373, 
375. 

Samad  Khan,  Mirza  (Momtas-es-Saltaneh), 
delegate  of  Persia,  5. 

Scheine,  Captain,  delegate  of  Russia,  5;  mem- 
ber of:  first  commission,  23,  second  commis- 
sion, 24,  and  drafting  committee  of  its  first 
subcommission,  31  note,  395  note;  asphyxi- 
ating gases,  324,  326,  365,  366;  expanding 
bullets,  324;  Geneva  convention,  revision  of, 
472;  inviolability  of  private  property  at  sea, 
412;  limitation  of  armaments,  283,  306,  321, 
322,  359,  360,  361,  362,  363,  364,  368,  370, 
371,  372,  373,  374,  377,  378,  379;  maritime 
warfare  and  the  Geneva  convention,  444, 
445,  446,  451,  452,  455,  457,  462,  470,  471, 
472;  theatre  of  maritime  warfare,  369. 

Schilling,  Baron  M.   F.  de,  third   secretary  of 


the  imperial  Russian  ministry  for  foreign 
affairs,  secretary  of  the  Russian  delega- 
tion,  6. 

Schimmelpenninck,  A.  G.,  secretary  of  lega- 
tion of  the  Netherlands,  secretary  of  con- 
ference,  8. 

Schnack,  J.  G.  F.  von,  delegate  of  Denmark, 
2;  member  of:  first  commission,  23,  second 
commission,  24;  expanding  bullets,  338;  land 
warfare,  489,  491,  558. 

Selir,  Count  de,  delegate  of  Portugal,  5;  mem- 
ber of  second  commission,  24. 

Serrallo,  Count  de,  delegate  of  Spain,  2;  mem- 
ber of  first  commission,  23 ;  expanding  bul- 
lets, 338;  limitation  of  armaments,  373. 

Siegel,  Rear  Admiral,  delegate  of  Germany,  1 ; 
vice  president  of  second  subcommission  of 
first  commission,  21,  23;  member  of:  first 
commission,  23,  second  commission,  24,  and 
drafting  committee  of  its  first  subcommission, 
31  note,  395  note,  third  commission,  25; 
asphyxiating  gases,  325;  limitation  of 
armaments,  360,  363,  365,  367,  368,  372,  377, 
378;  maritime  warfare  and  the  Geneva  con- 
vention, 450,  452,  454,  455,  459,  464,  470. 

Soltyk,  Count  Stanislaus,  delegate  of  Austria- 
Hungary,  1 ;  reporter  of  second  subcommis- 
sion of  first  commission,  359;  member  of: 
first  commission,  23,  second  commission,  24; 
limitation  of  armaments,  359,  363,  366,  367, 
368,  372,  378,  report  on,  291 ;  maritime  war- 
fare and  the  Geneva  convention,  445,  451, 
452. 

Staal,  Baron,  delegate  of  Montenegro  and 
Russia,  4,  5;  president  of  conference,  8, 
addresses,  15,  17,  223;  member  of  third 
commission,  25 ;  participated  in  work  of  its 
committee  of  examination,  106  note;  limita- 
tion of  armaments,  300;  maritime  warfare 
and  the  Geneva  convention,  27;  message  of 
condolence  to  Dr.  Roth,  586;  obligatory  ar- 
bitration, 702;  permanent  court  of  arbitra- 
tion, 708,  726. 

Stancioff,  Dr.  Dimitri  I.,  delegate  of  Bulgaria, 
7;  member  of:  second  commission,  25,  third 
commission,  26;  international  arbitration, 
651 ;  international  commissions  of  inquiry, 
637,  645,  791 ;  land  warfare,  497,  500,  511, 
513;  limitation  of  armaments,  311,  352; 
permanent  court  of  arbitration,  607,  664, 
778. 

Stengel,  Baron  von,  delegate  of  Germany,  1 ; 
vice  president  of  second  subcommission  of 
second  commission,  21,  24;  member  of:  first 
commission,  23,  second  commission,  24, 
drafting  committee  of  final  act,  31,  102, 
107  note;  maritime  warfare  and  the  Geneva 
convention,  447,  452,  456. 

Sturdza,  Demetrius,  president  of  the  council 
and  minister  of  foreign  affairs  of  Roumania, 
627. 

Suriya,  Nuvatr,  Phya,  delegate  of  Siam,  6; 
member  of  third  commission,  26;  expanding 
bullets,   339;    limitation  of  armaments,   335. 

Suter,  A.,  assistant  secretary  of  the  Swiss  po- 
litical federal  department,  secretary  of  the 
Swiss  delegation,  6. 


868 


INDEX  OF  PERSONS 


Tadema,  Captain,  A.  P.,  delegate  of  the  Neth- 
erlands, 4;  member  of:  first  commission,  23, 
second  commission,  24;  limitation  of  arma- 
ments, 361 ;  maritime  warfare  and  the 
Geneva  convention,  459. 

Tetuan,  Duque  de,  delegate  of  Spain,  2;  hon- 
orary president  of  second  commission,  21, 
24;  member  of  third  commission,  25. 

Thaulow,  Major  General  J.  J.,  delegate  of 
Norway,  6;  vice  president  of  first  subcom- 
raission  of  second  commission,  21,  24;  mem- 
ber of  second  commission,  25 ;  Geneva  con- 
vention, revision  of,  473;  maritime  warfare 
and  the  Geneva  convention,  452. 

Tour  d'Auvergne,  Prince  de  la,  correspon- 
dence respecting  the  Geneva  additional  arti- 
cles of  1868,  38  note. 

Turkhan  Pasha,  delegate  of  Turkey,  7;  hon- 
orary president  of  second  commission,  21, 
24;  member  of  third  commission,  26;  good 
offices  and  mediation,  588;  international 
arbitration,  603;  international  commissions 
of  inquiry,  645;  land  warfare,  484;  pacific 
settlement,  reservation,  100,  680,  683. 

Uehara,  Colonel  Yusaku,  delegate  of  Japan, 
4;  member  of  second  commission,  24;  limi- 
tation of  armaments,  308. 

Van  Varick,  van  Daehne,  author  of  Actes  et 
documents  relatifs  au  programme  de  la  Con- 
ference de  la  Paix,  582. 

Veljkovitch,  Dr.  Voislave,  delegate  of  Serbia, 
6;  member  of:  second  commission,  25,  third 
commission,  26;  arbitration  procedure,  678; 
good  offices  and  mediation,  647,  648,  649; 
international  arbitration,  604,  651 ;  interna- 
tional commissions  of  inquiry,  635,  672,  680, 
792,  793;  land  warfare,  522,  523,  558;  per- 
manent court  of  arbitration,  658,  660,  662, 
664. 

Vickery,  James  Harris,  secretary  of  the  Amer- 
ican delegation,  2. 

Villa  Urrutia,  Wenceslao  Ramirez  de,  dele- 
gate of  Spain,  2;  member  of:  second  com- 
mission, 24,  third  commission,  25. 

Villers,  Count  de,  delegate  of  Luxemburg,  4; 
member  of:  second  commission,  24,  third 
commission,  25. 

Visuddha  Suriyasakdi,  Phya,  delegate  of 
Siam,  6. 

Walewski,  Count  Colonna,  French  representa- 
tive at  the  congress  of  Paris  of  1856,  191, 
192. 

Welsersheimb,  Count  Rudolph  von,  delegate 
of  Austria-Hungary,   1 ;   honorary  president 


of  second  commission,  21,  24;  member  of 
third  commission,  25 ;  limitation  of  arma- 
ments, 361 ;  permanent  court  of  arbitration, 
609,  610,  665. 

Welti,  Mr.,  president  of  the  Swiss  confedera- 
tion, 553. 

White,  Andrew  D.,  delegate  of  United  States, 
2;  honorary  president  of  first  commission, 
21,  23;  member  of:  second  commission,  24, 
third  commission,  25 ;  enemy  private  prop- 
erty at  sea,  47,  412;  expanding  bullets,  85; 
Geneva  convention,  revision  of,  409. 

Wilhelmina,  Queen  of  the  Netherlands,  13,  14, 
15,  17,  102,  223,  225,  228,  582;  letter  of  Her 
Majesty  to  Leo  XIII,  222. 

Yang  Yii,  delegate  of  China,  2;  member  of: 
first  commission,  23,  second  commission,  24, 
third  commission,  25. 

Youssouf  Bey,  head  of  the  cabinet  of  the 
Turkish  ministry  for  foreign  affairs,  secre- 
tary of  the  Turkish  delegation,  7. 

Zannini,  Count  A.,  delegate  of  Italy,  4;  mem- 
ber of:  second  commission,  24,  third  commis- 
sion,  25. 

Zenil,  Jesus,  delegate  of  Mexico,  3 ;  member 
of:  first  commission,  23,  second  commission, 
24,  third  commission,  25;  land  warfare,  483, 
514. 

Zorn,  Dr.  Philipp  Karl  Ludwig,  delegate  of 
Germany,  1 ;  vice  president  of  third  commis- 
sion, 22,  25;  member  of:  second  commission, 
24,  committee  of  examination  of  third  com- 
mission, 106  note,  585 ;  arbitration  proce- 
ure,  616,  735,  740,  741,  743,  748;  Geneva 
convention,  revision  of,  394;  good  offices 
and  mediation,  648,  692,  695;  international 
arbitration,  701 ;  international  commissions 
of  inquiry,  644,  727,  728,  729,  731,  782, 
790,  793;  obligatory  arbitration,  659,  702, 
706,  707,  767,  768,  769,  770;  permanent  court 
of  arbitration,  607,  652,  654,  675,  701,  712, 
713,  714,  723,  726,  755,  756,  758,  761,  762, 
764,  775,  776,  783,  784,  785,  788,  796;.  re- 
vision of  arbitral  award,  749. 

Zuccari,  Chevalier  Louis,  delegate  of  Italy,  4; 
vice  president  of  second  subcommission  of 
second  commission,  21,  24;  member  of:  first 
commission,  23,  second  commission,  24,  and 
drafting  committee  of  its  second  subcom- 
mission, 51  note,  416  note,  525,  special  tech- 
nical committee  on  Russian  proposals  re- 
specting limitation  of  land  forces  and  mili- 
tary budgets,  89,  358;  expanding  bullets, 
279,  339;^land  warfare,  476,  485,  490,  494, 
533;  limitation  of  armaments,  315,  334. 


GENERAL  INDEX 


For  the  attitude  of  the  several  Governments  on  various  questions  before  the  conference 
see  under  both  the  names  of  the  countries  in  this  index  and  the  names  of  their  delegates  in 
the  preceding  index  of  persons. 


Adhesions: 

special  arrangements  regarding  pacific 

settlement  convention  152-4,  245,  771 
conditions     as     to     other     conventions 

103,  208-10,  414,  415 
Administrative  council   at  The  Hague: 
138,  188,  241,  598,  609,  610,  664,  665,  725 
726,  778,  785,  788 
Aircraft: 

proposal.  United  States    ....     354 

discussion  in  the 

plenary   conference        ...         79, 86 

first  commission    274,  275,  280-1,  324,  329 

first  subcommission    .       .      341-2, 353-5 

report  of  the 

first  commission 88-9 

first  subcommission    ....     287 
general   drafting   committee      207,   211-12 
declaration     forbidding     throwing     of 
projectiles   and   explosives  from 
balloons: 
draft  submitted  to  the  conference      211-12 
text  adopted  by  the  conference  .       .     264 

signatory   powers 268 

Aix-la-Chapelle  conference   (1818)  .       .     178 

Alabama  arbitration 748 

Arbitral  code.    See  Arbitration  procedure. 
Arbitral   tribunal    (see   Permanent   court 

of  arbitration),  132-4,  142-51,  178, 179, 
240-4,  600,  601,  607,  608,  611-17,  625, 
654-7,  666-8,  675-9,  733-41,  746-8,  750, 
757,  765,  776-8,  786-8,  797,  815,  816 
Arbitration,  international.     See  also  Ar- 
bitration procedure;  Arbitration, 
obligatory;   Permanent   court   of 
arbitration;    System   of    arbitra- 
tion, 
proposal  and  amendment: 
Russia,  167-9,  173,  178-9,  700,  705,  798- 
800,  808,  815,  816,  837 

Italy 190,817 

declarations: 
Roumania         ....     122, 650,  651 

Turkey 100,155,683 

report  of  the 

third  commission 118 

committee  of  examination     593,  595-601 
draft  submitted  to  the 

conference 159 

third  commission    ....     837, 851 
committee  of  examination       .       .     837 
text  adopted  by  the  conference     .        .     238 
claims  for  indemnity  for  damages  sub- 
ject of 175 


treaty    clauses    affecting    Powers    rep- 
resented  at  the  conference       191,  818 
Arbitration,  obligatory.     See   also  Inter- 
national commissions  of  inquiry, 
proposal,  Russia        ._    168,173,768,799,808 
declaration,    Roumania     .        .        .     120, 652 
discussion   in  the 
third   commission   583,604,629,639,658-61 
committee    of    examination      701-7,721, 

767-71 
report  of  the 

third   commission      ....        123-6 
committee  of  examination         .       596-7 

extension   of 239 

Arbitration    procedure.      See    also    Arbi- 
tration, international, 
proposals  and  amendments: 

France 754 

Netherlands     .       .       .     617,704,742,858 
Russia  (arbitral  code)   .       .       .     180,801 
Sweden   and   Norway   .        .        .133-4,611 
discussion   in  the 
third    commission      583,603,611-25,665-8, 

675-80 
committee  of  examination     687,  731-55, 

795-7 
report  of  the 

third   commission 139 

committee  of  examination       .     599-601 
draft  submitted  to  the 

conference 162 

third   commission    ....     843, 854 
committee  of  examination       .       .     843 
text  adopted  by  the  conference     .        .     241 
arbitral  awards     149-51,  239,  241,  244,  601, 
611,  615-25,  651,  666,  667,  678,  679, 
704,  740-3,  746,  748-55,  784,  788,  858 
compromis     139-41,  143,  147,  150,  151,  241, 
243,  244,  581,  600,  601,  611,  617,  623, 
624,  625,  644,  651,  656,  657,  665,  667, 
679,  704,  721,  722,  72>2,  734,  735,  739, 
741,  742,  746,  788,  808 
considered  by  the  Institute  of  Interna- 
tional Law  139,  144,  148,  599,  742,  749 
rules     in     arbitration     between     Great 
Britain     and     Venezuela    under 
^  treaty  of   1897        .       .       .       .183 
Armistices: 

proposals   and   amendments: 
Austria-Hungary   and   Russia    .  484 

Germany.       ....       61,427,485 
discussion   in   the 

second  commission         ....     409 
second    subcommission      .       .  474, 483-5 


870 


GENERAL  INDEX 


61 

426 

75 
440 

259 

576 
576 


Armistices  (continued): 
report  of  the 

second    commission 
second    subcoraraission 
draft  submitted  to  the 

conference         .... 
second    commission 
text   adopted   by  the 

conference        .... 
second   subcommission  on  first  read 
ing      .        .        . 
Brussels   declaration,  text 
Armor   plates     294,  295,  363,  364,   365,  372, 

373,  375,  376 
Asylum.     See  Neutral  asylum. 
Austria-Hungary.     See  also  the  Index  of 
Persons     under     Khuepach     zu 
Ried,     Lammasch,     Merey     von 
Kapos-Mere,      Okolicsanyi     von 
Okolicsna,  Soltyk,  Welsersheimb. 
delegates  to  the  conference    .       .         1, 228 
signatory  of  conventions  and  declara- 
tions   268 

proposals: 

armistices 484 

bullets 344 

prisoners  of  war   ....     480, 481 
telephones        ....       66, 544, 562 
declaration,  naval  cannon       .        .        .     371 
Awards,    arbitral    (see   Arbitration   pro- 
cedure) 149-51,  239,  241,  244,  601,  611, 
615-25,  651,  666,  667,  678,  679,  704, 
740-3,  746,  748-55,  784,  788,  858 

Balloons.     See  Aircraft. 
Belgium.     See  also  the  Index  of  Persons 
under       Beernaert,       Descaraps, 
Grelle   Rogier. 
delegates  to  the  conference     .       .         1, 228 
signatory  of  conventions  and  declara- 
tions    268 

proposals   and   amendments: 
internment  of  belligerents  and  care 
of    wounded    in    neutral    States 

68,  69,  509 
military  occupation  .  .  62, 514, 526 
permanent  court  of  arbitration  .  657 
qualifications  of  belligerents  .  .  549 
restitution  of  railway  plant  67,  505,542,  545 
seizure  of  railway  material     66,  505,  540, 

541 

system  of   arbitration    ....     768 

treatment    of    prisoners    of   war      56,    57, 

478,  480,  481 

wounded,   sick   and   shipwrecked     465, 469 

declaration,   pacific   settlement       .        .     212 

obligations   under   treaty  of  April   19, 

1839 212,765 

Belligerents  in   land   warfare.     See   also 
Belligerents  in  neutral  territory; 
Laws    and    customs   of   war   on 
land, 
proposals  and  amendments: 

Austria-Hungary,    prisoners   of   war 

480,  481 


Belgium,  prisoners  of  war   56,  57,  478,480, 

481 

qualifications  of  belligerents  .  .  549 
Great  Britain,  levee  en  masse  54,  420,  550 
Siam,  prisoners  of  war  .  .  .  481 
Switzerland,  prisoners  of  war  .     480,481 

levee  en  masse  ....     540,  550 
discussion  in  the 
second  commission 

second    subcommission 


.       .       .     409 
474-83,    488-9, 
546-57 
report  of  the 

second    commission        ....       53 
second  subcommission       .        .        .     419 
draft  submitted  to  the 

conference 69 

second  commission        ....     434 
text  adopted  by  the 

conference 253 

second  subcommission  on  first  read- 
ing     . 566 

Brussels  declaration,  text       .        .        .     566 

prisoners  of  war  54-8,  70,  254,  409,  420,  435, 

474-83,  489,  549,  557,  569 

qualifications    of^    53,    69,    253,    419,    434, 

546-57,  566 
sick  and  wounded,      58,  68,  69,  72,  78,  257 
262,  423,  434,  438,  443,  474,  488,  489, 
495,  500-2,  509,  558,  559,  574 
Belligerents    in    neutral    territory.      See 
also  Laws  and  customs  of  war 
on  land, 
proposals  and  amendments: 

Belgium 69,509 

Belgium   and   France    ...       68, 509 
declaration    of    Luxemburg    regarding 
obligations  under  treaty  of  Lon- 
don of  1867     ...      68, 499,  500 
discussion  in  the 

second  commission 413 

second  subcommission     489,  495-7,  499- 
502,  509,  558-9 
report  of  the 

second  commission         ....       67 
second   subcommission      .       .       .     433 
draft    submitted    to    the 

conference 77 

second   commission         ....     443 
text  adopted  by  the 

conference 261 

second  subcommission  on  first  read 


ing 


577 
577 


Brussels   declaration,  text 

considered    by   the    Institute    of   Inter 

national  Law 499 

Bering  Sea  fisheries   arbitration        .     224, 748 

Berlin,  General  Act   (1885),  good  offices 
and    mediation    (see    also    Con- 
ferences   and    Congresses)      109,    171, 
172,  192,  193,  691,  805,  806,  819,  820 

Berne,     General     postal     convention     of 

(1874)        .       .     124,171,177,806,811 

Bombardment.  See  Aircraft;  Bombard- 
ment by  naval  forces;  Sieges 
and   bombardments. 

Bombardment  by  naval  forces: 
discussion     .       .       46,49,409-11,493-4,629 


GENERAL  INDEX 


871 


Bombardment  by  naval  forces  (continued) : 
report  of  the 

second   commission        ...         50, 59 

second   subcommission       .       .     415, 425 

general   drafting  committee       .       .     104 

veeu 234 

Brussels,   Declaration  of    (see   also  Con- 
ferences and  Congresses)  50-69  passim, 
170,  366,  383,  385,  386,  415-34  passim, 
465,  466,  469,  47A-57S  passim,  633 
Budgets,  war.     See  under  Limitation. 
Bulgaria.      See    also    Index    of    Persons 
under    Hessaptchieff    and    Stan- 
cioff. 
delegates  to  the  conference    .       .         7, 233 
signatory  of  conventions   and  declara- 
tions    268 

amendments,  international  commissions 
of   inquiry       ....     118,638,645 
Bullets.     See  also  Guns, 
proposals  and  amendments: 

Austria-Hungary 344 

Russia 337, 338 

Switzerland 338 

United  States 80,279 

declaration,  Greece 213 

discussion  in  the 

plenary   conference        .       .       .         79-88 

first  commission  .    276-80, 298,  323-5,  329 

first   subcommission     332,   338-9,   343, 

344,  346,  347,  354,  356 

report  of  the 

first   commission 88 

first  subcommission    ....     286 
general  drafting  committee  103, 207,  211-12 
declaration  concerning  expanding  bul- 
lets: 
draft  submitted  to  the  conference      211-12 
text  adopted  by  the  conference  .       .     262 

signatory  powers 268 

Bureau  of  the  conference   ....        8 

Cables.     See  Telegraphs. 
Calibers    of   guns.      See    Armor    plates; 
Field     cannon;     Guns;     Naval 
cannon. 
Cannon.     See   Field  cannon   and   Naval 

cannon. 
Capitulations: 
discussion  in  the 
second   commission        ....     409 
second  subcommission       •     474,  483, 484 
report  of  the 

second    commission        ....       61 
second    subcommission      .        .        .     426 
draft  submitted  to  the 

conference 74 

second  commission         ....     440 
text  adopted  by  the 

conference 259 

second  subcommission  on  first  read- 
ing       576 

Brussels  declaration,   text        .        .        .     576 
China.     See   also   the   Index  of   Persons 
under  Ho  Yen-cheng,  Hoo-Wei- 
teh,  Lou  Tscng-tsiang,  Yang  Yu. 


delegates  to  the  conference     .       .        2,229 
signatory  of  the  conventions  and  dec- 
larations     268 

Commission  on  correspondence: 

formation 22 

members 218 

report 218 

Commissions  of  inquiry.  See  Inter- 
national commissions  of  in- 
quiry. 
Commissions  of  the  conference.  See  also 
Committees,  drafting;  Commit- 
tees of  examination ;  Subcommis- 
sions. 
first  commission  (see  also  Aircraft; 
Bullets;  Explosives;  Field  can- 
non; Gases;  Guns;  Limitation 
of  armaments  and  war  budgets, 
and  of  military  charges;  Mus- 
kets; Naval  cannon;  Powders; 
Submarines;  War-ships  with 
rams) 

organization 19, 21 

work,  outline  of    .       .       .       .         273-5 

members  23-4 

meetings 271-329 

report 88 

second  commission  (see  also  Geneva 
convention  of  1864;  Inviolability 
of  private  property  at  sea;  Laws 
and  customs  of  war  on  land; 
Naval  bombardment;  Rights 
and  duties  of  neutrals) 

organization 19, 21 

members 24-5 

meetings 383-443 

reports 

adaptation  of  the  principles  of 
the  Geneva  convention  to  mari- 
time warfare 31 

laws  and  customs  of  war  on  land       50 
third  commission   (see  also  Pacific  set- 
tlement    of     international     dis- 
putes) 

organization 19, 22 

members 25-6 

meetings 581-684 

report 106 

Committees,   drafting: 

general  drafting  committee  (drafting 
committee  of  the  Final  Act) 

appointment 31,49,  50 

members    .       .       .       .       .       .         31,50 

oral   report      ....     101,207,215 

second  commission 
first  subcommission    (maritime  war- 
fare   and    the    Geneva    conven- 
tion) 

appointment 454 

members     .        31    note,    395    note,    454 
report   (reference  to)        .       .       .     458 
draft  articles       .    458-65,  467-71,  passim 
second  subcommission  (laws  and  cus- 
toms of  war  on  land) 

appointment 525 

members        .       .       •       .51  note,  525 


872 


GENERAL  INDEX 


Committees,    drafting: 
second  commission 
second  subcommission  {continued) : 
reports 

proposed  text  on  requisitions  and 

contributions        ....     561 
Articles  6,  7  and  8  of  Declara- 
tion  of   Brussels   draft    (mili- 
tary occupation)  .        .        .     562 
Committees  of  examination: 
first  commission 

first  subcommission  (special  techni- 
cal committee  on  limitation  of 
land  armaments  and  war  bud- 
gets) 

appointment 358 

members 89, 358 

report 315 

second  subcommission  (special  com- 
mittee of  reporters  on  limitation 
of   naval   budgets) 

appointment 379 

members 379 

report 320 

third  commission  (convention  for  the 
pacific  settlement  of  interna- 
tional   disputes) 

appointment 585 

members    .       .       .    106  note,  585,  687  note 

meetings 687-797 

reports : 
maintenance  of  general  peace       .     587 
good  offices  and  mediation     587-8,  593-4 
international    commissions    of    in- 
quiry   594 

international  arbitration  .        .      595-601 
Compromis    (see  Arbitration  procedure) 

139-41,  143,  147,  150-1,  241,  243,  244, 

581,  600,  601,  611,  617,  623,  624,  625, 

644,  651,  656,  657,  665,  667,  679,  704, 

721,  722,  732,  734,  735,  739,  741,  742, 

746,  788,  808 

Conferences    and    congresses.      See    also 

Plenary   conference. 

Aix-la-Chapelle   conference    (1818)      .     178 

Berlin,   African   conference   of    (1885)    109, 

171,  172,    192,    193,    691,    805,    806, 

819,  820 
Brussels      interparliamentary      confer- 
ence   ....     127,132,598,712 
Brussels  conference    (1874)     46,  50-69  pas- 
sim,  224,    251,    272,    287,    342,    383, 
415-34    passim,   475-578    passim,   804 
Brussels  conference  regarding  African 

slave  trade  (1889-90)  117,  193,  725,  820 
Geneva  conference  (1864)  .  .  170,804 
Geneva  conference  (1868)  .  .  32,396 
Pan  American  conference  (1889-90)  .  122 
Paris,   Congress   of    (1856)      109,    170,    171, 

172,  191,  192,  690,  691,  805,  806,  818 
Red     Cross    conferences     (1867,     1869, 

1884,  1892)      .       .       .     385,386,393 
St.    Petersburg   conference    (1868)      79,   83, 
170,  272,  273,  286,  332,  804 
Vienna,  Congress  of  (1816)    .       .       .272 
Contributions  (see  also  Military  occupa- 
tion)     62-7,    260,    261,    523.    525-40, 
559-62,  574 


Conventions  and  declarations  of  the  con- 
ference. For  other  conventions 
and  declarations,  see  Treaties, 
conventions  and  declarations 
containing  provisions  for  arbi- 
tration  or  mediation. 

final   act 228 

convention  (I)  for  the  pacific  settle- 
ment of  international  disputes   .     235 

convention    (II)     respecting    the    laws 

and  customs  of  war  on  land       .     251 

convention  (III)  for  the  adaptation  to 
maritime  warfare  of  the  princi- 
ples of  the  Geneva  convention  .     247 

declaration  (IV,  I)  prohibiting  the  dis- 
charge of  projectiles  and  explo- 
sives  from   balloons      .        .        .     264 

declaration  (IV,  2)  concerning  asphyx- 
iating gases 266 

declaration  (IV,  3)  concerning  expand- 
ing bullets 262 

table  of  signatures    ....     220,268 
Court    of    arbitration.      See    Permanent 
court  of   arbitration. 

Declarations.  See  Conventions  and  dec- 
larations of  the  conference; 
Treaties,  conventions  and  dec- 
larations etc. 
Delegates  of  the  powers  represented  at 
the   conference    (see    also   Index 

of    Persons) 1 

Denmark.    See  also  the  Index  of  Persons 
under   Bille,   Schnack. 
delegates  to  the  conference    .        .         2, 229 
signatory  of  the  conventions  and  dec- 
larations     268 

proposal,  shore  ends  of  cables    66,  100,  101, 

541,  562 
Diving  torpedo  boats.     See  Submarines. 
Drafting    committee     of    the    final     act 
(General  drafting  committee)  : 

appointment 31,49,50 

members        ....         31, 50,  107  note 
report    (oral)      ....     101,207,215 

Enemy    private    property    at    sea.      See 
Inviolability    of    enemy    private 
property  at  sea. 
Engines   of   warfare,    etc..    Conventional 
prohibition  of  progress  in  manu- 
facture of  new    (see  First  com- 
mission    and    first    and    second 
subcommissions  thereof)    88, 273-5, 282 
Espionage.    See  Spies. 
Explosives.     See  also  Aircraft;  Bullets; 
Gases;    Guns, 
discussion  in  the 

first  commission      ....  272-5 

first  subcommission    .       .     331,341,354 
second    subcommission      .       .    360, 361, 

365-7,  i7i 
report  of  the 
first  subcommission       ....     285 
second  subcommission   ....     295 
international    military    commission    at 

St.  Petersburg  (1868)    .       .       .272 


GENERAL  INDEX 


873 


Field    cannon.      See    also    Guns;    Naval 
cannon, 
discussion  in  the 
first  commission      ....     21Z,  281 
first  subcommission     331,  339,  340,  341, 
343,  356,  357 
report  of  the 

first    commission     ....         88, 89 
first   subcommission    ....     285 
Final   act  of  the  conference        .        .        .     228 
oral    report    of    the    general    drafting 

committee         .       .       .     101,207,215 
table  of  signatures     ....     220,234 
First    commission.      See    Commissions   of 
the    conference ;    Committees    of 
examination;   Subcomraissions. 
Flag.      See    Geneva    convention;    Parle- 

raentaires;  Truce,  flag  of. 
France.    See  also  Index  of  Persons  under 
Bihourd,  Bourgeois,  Estournelles 
de    Constant,    Mounier,    Pephau, 
Renault, 
delegates  to  the  conference    .       .         3, 229 
signatory  of  the  conventions  and  dec- 
larations     268 

proposals  and  amendments: 

internment  of  belligerents  and   care 

of  wounded  in  neutral  States     68,  509 
limitation  of  military  charges   .       90,  319 

naval  cannon 363 

permanent  court  of  arbitration     135,  136, 

609,  761,  787 
revision  of  arbitral  awards  .  .  754 
spies 60,425,490 

Gases,  asphyxiating  or  deleterious: 
discussion  in  the 

plenary   conference        ....       79 
first  commission     .      283,284,324-6,328-9 
second  subcommission         365-7,  374,  375 
report  of  the 

first    commission 88 

second  subcommission       .        .     295, 296 

general    drafting   committee       207,211-12 

declaration     prohibiting    the    diffusion 

thereof: 

draft  submitted  to  the  conference       211-12 

text  adopted  by  the  conference  .        .     266 

signatory  powers 268 

Geneva   convention    of    1864.      See    also 
Conferences   and   congresses, 
proposal  for  revision  of,  Russia   .        .     385 
vceu  for  revision  of  .       .  46, 22)2),  393-5,  408 

472,  473 
report  of  the  general  drafting  com- 
mittee         104 

application    to    sick    and    wounded    in 

land  warfare    30,  58,  69,  72,  78,  257, 
262,  423,  434,  438,  443,  453,  463,  488, 

489,  574 
interpretation  not  subject  to  obligatory 

arbitration        .        .        .     124,706,707 
adaptation    to    maritime    warfare    of 
the  principles  of, 
proposals   and   amendments: 

Belgium 465,469 

Russia 451 


Siam 466 

United  States 392 

declarations: 

Japan 30,468 

Persia 388 

Portugal 27,391 

discussion    in    the 

plenary  conference    .      27-31,88,99,211 
second   commission     .        .        .        383-95 
first  subcommission       .       .       444-73 
report  of  the 

second  commission     ....       31 

first  subcommission        .  .     395 

drafting  committee   (reference 

to)      .        .       .       .       .       458-72 

general  drafting  committee    .       .     209 

convention 

draft  submitted  to  the 

conference         ....       42, 405 

second  commission         .        .  387-9 

first  subcommission    .        .       459-65 

text  adopted  by  the  conference     .     247 

signatory  powers       ....     268 

reservations: 

Germany 249,268 

Great  Britain  ....     249,  268 

Turkey 249,268 

United  States  ....     249,268 
belligerent  merchant  ships  .  451,  452 

flags   and   distinctive   signs   for   hos- 
pital   ships     29,   248,   386,   388,   390, 
391,  401,  445,  446,  447,  450,  453,  454, 
459,  461,  462 
hospital  ships 

belligerent,  other  than  government 

vessels    28,  29,  30,  34-5,  36-7,  247-8, 

387-8,  398-401,  446-7,  450,  458,  460-1 

boats,    relief        .       .       .     444,450,453 

military    hospital    ships      28,    30,    32-4, 

35-7,  247-8,  387-8,  396,  399-401,  445, 

446,  449-51,  459-62,  467-8 

neutral     hospital     ships       28-30,     35-7 

247-8,  387,  388,  392,  399-401,  444,  447, 

450,  453,  460 

medical  personnel     29,  30,  39,  248,  388-9, 

402,  445,  455,  462,  463 

neutral   merchant  vessels     29,  30,  Zl ,  38, 

248,  388,  391,  392,  401,  444-6,  450-2, 

455,  462,  467,  468 

parlementaires,    maritime    .       .       .     457 

prisoners  of  war    29,  39-42,  248,  388,  389, 

455,  462-6,  468 

sick,    wounded    and    shipwrecked      29-30, 

39-42,  248-9,  389-92,  403-5,  444-6,  449, 

452,  453,  455-7,  463-70 

internment  in  neutral  territory,     29,  41 

249,  389,    390,    456,    465,    467,    469, 

470,  471 
Germany.      See    also    Index    of   Persons 
under    Gross    von    Schwarzhoff, 
Miinster,  Siegel,  Stengel,  Zorn. 
delegates  to  the  conference     .        .         1,228 
signatory  of  the  conventions  and  decla- 
rations        268 

reservation  to  convention  for  the  adap- 
tation to  maritime  warfare  of 
the  principles  of  the  Geneva 
convention        ....     249,268 


874 


GENERAL  INDEX 


Germany    (continued) : 

proposal,  armistice    ...       61, 427, 485 

Good  offices  and  mediation: 
proposals  and  amendments: 

Italy 190,817,836 

Russia       .       .       .     166,170,691,797,804 
United  States  .       .     112,188,696,833,836 
declarations: 

Serbia 113,650 

Turkey 100,155,683 

discussion  in  the 
third  commission    583,  587-93,  603,  647-50 
committee  of  examination     687,  688-99, 

767,  773-4 
report  of  the 

third  commission 108 

committee  of  examination       .       .     587 
draft  submitted  to  the 

conference 157 

third  commission    ....     835, 849 
committee  of  examination       .       .     835 
text  adopted  by  the  conference       .        .     236 
treaty  clauses   affecting  powers   repre- 
sented at  the  conference      .     191, 818 

Great   Britain.      See    also   the    Index   of 
Persons    under    Ardagh,    Court, 
Fisher,  Howard,  Pauncefote. 
delegates  to  the  conference    .        .         3,  230 
signatory  of  the  conventions  .        .        .     268 
reservation  to  convention  for  the  adap- 
tation   to    maritime    warfare    of 
the    principles    of    the    Geneva 
convention        ....     249, 268 
proposals  and  amendments: 

levee   en    masse      .        .        .       54, 420, 550 
permanent  court  of  arbitration     127,  186, 
711,  717,  720,  725 
declarations: 

permanent  court  of  arbitration         .     813 
regulations  on  land  warfare     .       .     517 

Greece.     See  also  the  Index  of  Persons 
under   Delyanni. 
delegates  to  the  conference    .       .         3, 230 
signatory  of  the  conventions  and  dec- 
larations     268 

declaration,  bullets 213 

Guns.     See  also  Bullets;   Field  cannon; 
Naval  cannon, 
proposals   and   amendments: 
Netherlands     .       .     289,290,337,345,349 

Russia 289,331,337 

discussion  in  the 
first  commission     .       .     273,275,281,282 
first   subcommission     331-6,  337-8,  340, 
344-7,  349-53,  354,  356,  357 
report  of  the 

first   commission 89 

first  subcommission  .       .       .     288 

general  drafting  committee       .       .     104 

voeu 233 

Hospital  ships.     See  Geneva  convention 

of  1864. 
Hostilities.      See    Naval    war;    War    on 

land. 


Inquiry,     international    commissions    of. 
See  International  commissions  of 
inquiry. 
Institute  of  International  Law: 

on  application  of  rules  of  land  war- 
fare to  maritime  warfare   .     410,  411 
arbitration  procedure     139,  144,  148,  599, 

742,  749 
laws  of  war  on  land  .  .  57,488,510 
rights  and  duties  of  neutrals     .        .    496, 

499 
International  bureau  (see  also  Perma- 
nent court  of  arbitration)  239,  240, 
241,  598,  599,  605,  606,  607,  608,  609, 
610,  652,  653,  654,  657,  665,  674,  710, 
711,  718,  720,  722,  725,  726,  756,  757, 
758,    761,    762,    765,    775,    777,   785, 

786,  788 
International  commissions  of  inquiry: 
proposals  and  amendments: 

Bulgaria 118,638,645 

Luxemburg       .        .     116,643,670,790,791 

Roumania 116,669 

Russia 169,800 

Switzerland 118,793 

declarations: 

Siam 115,638 

Turkey    ^ 100,155,683 

discussion  in  the 
third  commission     .       .     603, 626-46, 669- 

74 
committee  of  examination     688,  727-Z\, 
765-6, 774,  780-3,  790-4 
report  of  the 

third   commission 113 

committee  of  examination         594-5,  670 
draft  submitted  to  the 

conference 158 

third   commission 851 

text  adopted  by  the  conference     .       .     237 
obligatory    character    objected    to      629-43, 

727,  781-2,  79Z 
Internment: 

in  land  warfare     55,  67,  70,  77,  254,  256, 

261-2,   433,   435,   443,   476,   481,   482, 

489,  499,  500,  559 

in    naval    warfare     29,   41,   249,    389,   390, 

456,  465,  467,  469,  470,  471 

Interparliamentary  union  (Brussels)    127,  132, 

598,  712 
Invasion.      See    Military   occupation. 
Inviolability   of   enemy   private   property 
at  sea: 
proposal,  United  States  .       50,411,491,629 


discussion  in  the 

*ty 

plenary  conference 

.       .       .   46-9 

second  commission 

.       .       411-13 

second  subcommission 

.       .         491-3 

third   commission    . 

.       .       .    629 

report  of  the 

second  commission 

.       .       .      50 

second   subcommission 

.       .       .    415 

general  drafting  committee 

.       .     104 

vceu 

.       .        233-4 

Italian  treaties  of  commerce. 

precedent 

of        ...       . 

.       .       .    412 

GENERAL  INDEX 


875 


Italy.     See    also   the    Index   of   Persons 
under    Bianco,    Nigra,    Porapilj, 
Zannini,   Zuccari. 
delegates  to  the  conference     .        .         4, 230 
signatory  of  the  conventions  and  dec- 
larations     268 

proposals  and  amendments: 

good  offices  and  mediation  .  190,  817,  836 
international  arbitration  .  .  190, 817 
military  occupation  ....  531 
permanent  court  of  arbitration  .  715 
declaration,     inviolability    of    private 

property   at  sea     ....       49 


Japan.     See   also  the   Index  of  Persons 
under  Ariga,   Hayashi,   Motono, 
Sakamoto,  Uehara. 
delegates  to  the  conference   .       .         4, 230 
signatory  of  the  conventions  and  dec- 
larations     268 

declaration,  maritime  warfare  and  the 

Geneva  convention       .       .       30, 468 


Laws  and  customs  of  war  on  land.     See 
also  Armistices;   Belligerents  in 
land    warfare;    Belligerents    in 
neutral  territory;   Capitulations; 
Internment;    Means   of   injuring 
the  enemy;  Military  occupation; 
Parlementaires;      Prisoners      of 
war;  Sieges  and  bombardments; 
Spies, 
proposals   and    amendments: 

Austria-Hungary,   telephones     66,  544,  562 
Austria-Hungary  and  Russia,  armis- 
tices   .......     484 

Austria-Hungary    and     Switzerland, 

prisoners  of  war    .        .        .     480, 481 

Belgium,  military  occupation       62,  514,  526 

qualifications  of  belligerents  .        .     549 

seizure    of   railway   material      66,    505, 

540,  541 
sick     and     wounded     in     neutral 
States        .....       69,509 

treatment  of  prisoners  of  war     56,  57, 
^  478,  480,  481 
Belgium     and     France,     sick     and 

wounded  in  neutral  States  .       68,  509 
Belgium  and  Luxemburg,   restitution 

of  railway  plant  67,  505,  542,  543,  545 
Denmark,   shore   ends  of  cables     66,   100, 

101,  541,  562 
France,  spies   ....       60,425,490 

Germany,    armistices    .       .       61,427,485 
Great  Britain,  le<vee  en  masse   54,  420,  550 
Italy,  military  occupation   .        .        .     531 
Netherlands,  adhesions         .        .       .     415 
military  occupation    ....     528 

Siam,  military  occupation   .        .    511,  515, 

519,  520,  522,  523,  524,  526 

prisoners  of  war       ....     481 

Switzerland,  levee  en  masse      .     540, 550 
military  occupation   .       .    515,  519,  529, 

536,  537 
restitution  of  railway  plant  67,  541,  563 


declarations: 
Luxemburg,  obligations  under  treaty 

of  1867    ....      68,433,500 
Switzerland,  military  occupation      .     536 
report  of  the 

second    commission        ....       50 

second    subcommission      .        .        .     415 

drafting   committee        .        .     561, 562 

general   drafting  committee       .         207-9 

convention 

draft  submitted  to  the 

conference 69 

second  commission     ....     434 
second  subcommission   .        .        .     561 
text   adopted  by  the 

conference 251, 253 

second      subcommission     on     first 

reading 564 

signatory  powers 268 

Declaration  of  Brussels,  text  .        .        .     564 
considered  by  the  Institute  of  Interna- 
tional Law      .       .       57,410,488,510 
Levee    en    masse     54-5,    254,    420,    540,    547, 

548,  550-55 
Limitation    (see    also    First    Commission 
and  first  and  second  subcommis- 
sions   thereof;    Aircraft;    Armor 
plate;   Bullets;   Cannon;   Explo- 
sives;   Gases;    Guns;    Muskets; 
Powders;      Submarines;      War- 
ships with  rams)  : 
of  armaments  and  war  budgets: 

proposals,  Russia   .       .         89,90,305,306 
discussion  in  the 
plenary   conference    ...         79,  88 
first  commission    272-5,  299-317,  319-22, 

326-7,  329 
second  subcommission  (naval)     377-80 
report  of  the 
first  commission         ....  88-90 

special    technical    committee    of 
first       subcommission       (mili- 
tary)      .       .....       .       .315 

second    subcommission     (naval)     320 
general   drafting  committee    .        .     104 

vaeu  concerning 233 

of  military  charges: 

proposal,  France    ....       90, 319 
discussion    in    the 

plenary   conference    ...         79, 88 

first  commission  .       .       317-19,  326,  2i27 

report  of  the 

first  commission         ....  89-90 

general  drafting  committee     .       .     104 

resolution   concerning    .       ^        .        .     233 

London,     Treaty    of     (May     11,     1867) 

68, 212, 433,  500 
Luxemburg.     See  also  the  Index  of  Per- 
sons under  Eyschen,  Villers. 
delegates  to  the  conference     .       .        4, 230 
signatory  of  the  conventions  and  dec- 
larations     268 

proposals  and  amendments: 

international  commissions  of  inquiry 

116,643,670,790,791 
restitution  of  railwav  plant  67,  543 

rights  and  duties  of  neutral   States 

45, 53, 495 


876 


GENERAL  INDEX 


Luxemburg    (continued): 

declaration    regarding   obligations   un- 
der London  treaty  of  1867     68,  212, 

433,  500 

Maintenance  of  general  peace     108,  157,  236, 
587,    589,    603,    647,    689,    691,    762, 

773,  849 
Marginal   sea         .       66,494,541,542,544,562 
Maritime  warfare.     See  Geneva  conven- 
tion; Inviolability  of  enemy  pri- 
vate  property   at   sea. 
Means  of  injuring  the  enemy.     See  also 
Aircraft;     Bullets;     Gases;     St. 
Petersburg  declaration, 
discussion  in  the 

second  commission         ....     409 
second  subcommission     474, 491, 492,  557 
report  of  the 

second  commission         ....       58 
second  subcommission       .       .       .     423 
draft    submitted    to    the 

conference 73 

second  commission         ....     438 
text  adopted  by  the 

conference 257 

second  subcommission  on  first  read- 
ing       567 

Declaration  of  Brussels,  text         .        .     567 
Mediation.     See  Good  offices  and  media- 
tion;   Special   mediation. 
Medical     personnel     (see     also     Geneva 

convention)     29,  30,  39,  248,  388,  402, 
445,  455,  462,  463 
Merchant  ships  (see  also 'Geneva  conven- 
tion)    29,  30,  37,  38,  248,  388,  391, 
392,    401,    444-6,    450-2,    455,    462, 

467,  468 
Mexico.     See  also  the  Index  of  Persons 
under  Mier,  Zenil. 
delegates  to  the  conference     .        .         3,229 
signatory  of  the  conventions  and  dec- 
larations     268 

Military   authority  over  the  territory  of 
the   hostile   State.     See  Military 
occupation. 
Military  hospital  ships  (see  also  Geneva 

convention)     28,  30,  32-4,  35-7,  247-8, 
387-8,  396,  399-401,  445,  446,  449-51, 
459-62,  467-8 
Military  occupation: 

proposals   and   amendments: 

Austria-Hungary  ...  66,  544,  562 
Belgium  .  62,66,505,514,526,540,541 
Belgium   and    Luxemburg     67,    505,    542, 

543,  545 
Denmark  .       .       66,100,101,541,562 

Italy 531 

Netherlands 528 

Siam  .  511,  515,  519,  520, 522,  523, 524,  526 
Switzerland     67,   515,   519,   529,   536,   537 

541,  563 
declaration,  Switzerland  ....  536 
discussion    in    the 

second  commission         .        .        .        .411 

second  subcommission    474,  487-8,  502-8, 

509-16,  519-46,  557,  558 


report  of  the 

second  commission         ....       62 
second  subcommission       .        .        .     427 
drafting  committee    (Articles  6, 

7,  8) 562 

draft   submitted   to  the 

conference 75 

second  commission         ....     441 
text  adopted  by  the 

conference 259 

second   subcommission  on  first  read- 
ing       564,574 

Brussels  declaration,  text         .        .     564, 574 
contributions     62-7,    260,   261,    523,    525-40, 

559-62,  574 
railway    plant      66,    67,    261,    505,    540-46, 

560,  563 

requisitions     62-7,  260,  261,  504,  505,   523, 

525-31,  533,  535,  536,  539-40,  541,  543, 

559-62,  574 

taxes      63-4,    260,    503-5,    514-15,    522-24, 

526-29,  531,  535-7,  560,  561,  574 

telegraphs  and  telephones    66,  100,  101,  261, 

540-2,  544,  545,  560,  562,  563 

Monroe  doctrine: 

reservation  of  United  States  ...       99 
Montenegro.     See  also  the  Index  of  Per- 
sons under  Staal. 
delegates  to  the  conference    .        .     4,  5, 230 
signatory  of  the  conventions  and  dec- 
larations     268 

Muskets  (see  also  Guns)     277,  278,  350-4,  356 


Naval  bombardment    46,  49,  50,  59,  104,  234, 
409-11,  415,  425,  493-4,  629 
Naval  cannon.     See   also  Field  cannon, 
proposals: 

France 363 

Netherlands 282-3 

declaration,   Austria-Hungary  371 

discussion   in  the 

first  commission      ....         282-3 
second  subcommission     359,  360,  362-5, 
370-3.  375,  379 
report  of  the 

first  commission 89 

second  subcommission       .        .         291-5 
general    drafting    committee        .      .     104 

vceu 233 

Naval  guns  and  rifles.     See  Guns;  Field 

cannon;  Naval  cannon. 
Naval    war.      See    Geneva    convention; 
Inviolability    of    enemy    private 
property   at   sea. 
Netherlands.     See  also  the  Index  of  Per- 
sons under  Asser,  Beer  Poortu- 
gael,   Karnebeek,   Rahusen,  Ta- 
dema. 
delegates  to  the  conference    .        .         4,  231 
signatory  of  the  conventions  and  dec- 
larations     268 

proposals  and  amendments: 

arbitration   procedure    .     617,  704,  742,  858 
guns  .       .       .     289,290,337,345,349 

land  warfare 415,  528 

naval  cannon 282-3 


GENERAL  INDEX 


877 


Neutral  asylum: 

in   land  warfare     67,  68,  261,  262,  499, 

500,  509 
in  naval  warfare     41,  249,  389,  390,  456, 

465,  469 
Neutral  hospital  ships   (see  also  Geneva 

convention)    28,   29,    30,    35-7,    247-8, 
387,    388,    392,    399-401,    444,    447, 
450,  453,  460 
Neutral     merchant     vessels      (see     also 

Geneva  convention)     29,  30,  27,  38, 
248,  388,  391,  392,  401,  444-6,  450-2, 
455,  462,  467,  468 
Neutral  railway  plant  (see  also  Military 

occupation)   67,  261,  505,  540,  542-6, 
_  560,  563 
Neutral  territory.  Internment  of  Belliger- 
ents   and    care    of   wounded    in. 
See  also  Geneva  convention, 
proposals   and    amendments: 

Belgium 69,509 

Belgium   and    France    ...       68, 509 
declaration    of    Luxemburg    regarding 
obligations  under  treaty  of  Lon- 
don  of   1867    .       .       .       68,499,500 
discussion  in  the 

second   commission         ....     413 
second  subcommission     489,  495-7,  499- 
502,  509,  558-9 
report  of  the 

second  commission         ....       67 
second    subcommission      .        .        .     433 
draft  submitted  to  the 

conference 77 

second  commission         ....     443 
text  adopted  by  the 

conference 261 

second  subcommission  on  first  read- 
ing     .        .        577 

Brussels  declaration,  text        .        .        .     577 
considered  by  the  Institute  of  Interna- 
tional Law 499 

Neutrals,  rights  and  duties  of.     See  also 
Geneva  convention ;  Neutral  ter- 
ritory, internment  of  belligerents 
and  care  of  wounded  in. 
proposal,   Luxemburg       .       .         45, 53, 495 
discussion  in  the 

plenary  conference        ....    45-6 
first  commission,  second  subcommis- 
sion   •     . .  .     .       .       •        369, 373-4 
second   commission        .  .       .413 

second  subcommission       .       .         495-9 
report  of  the 

second   commission        .       .       .       .       SZ 
general  drafting  committee         .       .     104 

vceu 233 

Institute  of  International  Law  on,    496,  499 
Norway.    See  Sweden  and  Norway;  also 
the     Index     of     Persons     under 
Konow,  Thau  low. 

Pacific  settlement  of  international  dis- 
putes. See  also  Arbitration,  in- 
ternational ;  Arbitration,  obliga- 
tory;     Arbitration      procedure; 


Good  offices  and  mediation;  In- 
ternational commissions  of  in- 
quiry; Maintenance  of  general 
peace;  Permanent  court  of  ar- 
bitration;  System  of  arbitration. 

proposal,  Russia 166,797 

declarations: 

Belgium 212 

Luxemburg 212 

Turkey 100,155,683 

United    States         ....       99, 15S 
report  of  the 

third   commission 106 

committee  of  examination     587-601,  670 
drafting  committee  on  preamble  and 

final  provisions       .        .        .        215-18 
convention 

draft  submitted  to  the 

conference 156 

third   commission        ....     84^ 
text  adopted  by  the  conference         .     235 

signatory  powers 268- 

reservations: 
Roumania    .       .       .     268,650,651,652 

Serbia 268,65a 

Turkey 100, 26S 

United  States      .       .       .       .       99, 26& 
special     arrangements    regarding    ad- 
hesion to         .       .         152-4,245,771 
Pan  American  conference   (1889-90)        .     122 
Paris,   Congress  of    (1856),   good   offices 

and    mediation      109,    170,    171,    172,. 
191,  192,  690,  691,  805,  806,  81& 
Parlementaires.     See    also   Geneva   con- 
vention, 
discussion  in  the 
second   commission 
second  subcommission 
report  of  the 

second   commission 
second  subcommission 
draft  submitted  to  the 
conference 
second  commission 
text  adopted  by  the 
conference 
second  subcommission  on  first  read 


ing 


.     411 
474, 485-6 


6a 

425 


74 
439 

258 


575 
575 


Brussels  declaration,  text 
Parole      .        56,  71, 255, 261, 468, 478,  479, 499 
Permanent    administrative    council.      See 
Administrative    council    at   The 
Hague. 
Permanent  court  of  arbitration.    See  also 
Arbitration,    international, 
proposals  and   amendments: 

Belgium 657" 

France  .  .  .  135,136,609,761,787 
Great  Britain    127,  186,  711,  717,  720,  725 

Italy 715 

Portugal 605,783 

Russia  .  .  127,178,179,714,815,816 
Siam  ....  607,777,786,787 
United    States      127,    150,    188,    718,    724, 

795,  833 
declaration.  Great  Britain       .       .       .     813 


878 


GENERAL  INDEX 


Permanent  Court  of  Arbitration  (continued)  : 
discussions  in  the 

third  commission    584-5,  604-10,  652-65,  674 
committee  of  examination     687,  709-27, 
743,  755-65,  775-9,  783-89 
report  of  the 

third  commission 126 

committee  of  examination       .         597-9 
draft  submitted  to  the 

conference 160 

third  commission    ....     840, 852 
committee  of  examination       .        .     840 
text  adopted  by  the  conference     .       .     239 
arbitral   tribunal     132-4,    142-51,    178,    179, 
240-4,  600,  601,  607,  608,  611-17,  625, 
654-7,  666-8,  675-9,  733-41,  746-8,  750, 
757,  765,  776-8,  786-8,  797,  815,  816 
international  bureau    239,  240,  241,  598,  599, 
605,  606,  607,  608,  609,  610,  652,  653, 
654,  657,  665,  674,  710,  711,  7T8,  720, 
722,  725,  726,  756,  757,  758,  761,  762, 
_  765,  775,  777,  785,  786,  788 
permanent  administrative  council     138,  188, 
241,  598,  609,  610,  664,  665,  725,  726, 
778,  785,  788 
Persia.     See   also  the   Index  of  Persons 
under  Riza  Khan,  Samad  Khan, 
delegates  to   the  conference    .        .         5,231 
signatory  of  the  conventions  and  dec- 
larations    268 

declaration,  maritime  warfare  and  the 

Geneva  convention  .  .  .  388 
Plenary  conference,  meetings  .  .  9-227 
Plenipotentiaries  to  the  conference.     See 

Delegates. 
Portugal.    See  also  the  Index  of  Persons 
under     Castilho,     Macedo,     Or- 
nellas,    Ornellas    de    Vasconcel- 
los,    Selir. 
delegates  to  the  conference    .       .         5, 231 
signatory  of  the  conventions  and  dec- 
larations     268 

amendment,  permanent  court  of  arbi- 
tration      .       .       .       .       .     605, 783 
declaration,     maritime     warfare     and 

the  Geneva  convention         .       27, 391 
Postal  union,  universal     121,  124, 139, 171, 177, 
193-4,  241,  597,  806,  811,  820,  821 
Powders.    See  also  Field  cannon;  Guns; 
Naval  cannon, 
discussion  in  the 

first  commission      ....     273,275 
first  subcommission   .       .     331, 332, 341 

346,  354 

second  subcommission       .       .     363, 375 

report  of  the 

first  subcommission       ....     284 

second  subcommission   ....     294 

Powers    represented    at    the    conference 

and   their   delegates       .        .         1, 228 
nomenclature  of  sovereigns  and  rulers 

of 219 

Prisoners  of  war.    See  also  Geneva  con- 
vention;  Internment, 
proposals  and  amendments: 
Austria-Hungary  and  Switzerland  480, 481 
Belgium    .       .       .        56,57,478,480,481 


Siam 481 

discussion  in  the 
second  commission         ....     409 
second      subcommission       474-83,     489, 

549,  557 
report  of  the 

second  commission         ....       55 
second  subcommission       .       .       .     420 
draft  submitted  to  the 

conference 70 

second  commission         ....     435 
text  adopted  by  the 

conference 254 

second      subcommission      of      second 

commission  on  first  reading       .     569 
Brussels  declaration,  text  .       .     569 

Projectiles.      See    Aircraft;    Explosives; 

Gases. 
Publicity  of  proceedings  of  the  confer- 
ence    20,586 

Railway  plant   (see  also  Military  occu- 
pation)    66,  67,  261,  505,  540-6,  560, 

563 
Red    Cross.      See    Geneva    convention; 

Conferences. 
Requisitions    (see    also  Military  occupa- 
tion)    62-7,  260,  261,  504,  505,  523, 
525-31,  533,  535,  536,  539-40,  541,  543, 
559-62,  574 
Reservations: 

Germany,   maritime   warfare    and   the 

Geneva  convention        .       .     249, 268 
Great  Britain,   maritime   warfare   and 

the   Geneva  convention       .     249,268 
Roumania,    pacific    settlement    conven- 

_  tion    ....     268,650,651,652 
Serbia,    pacific    settlement    convention 

268,  650 
Turkey,    maritime    warfare    and    the 

Geneva  convention      .       .       249, 268 
pacific  settlement  convention     .     100, 268 
United    States,   maritime   warfare    and 

the  Geneva  convention         .     249, 268 
pacific  settlement  convention      .       99,268 
Resolutions.     See  also  under  Limitation. 

limitation  of  military  charges       .        .     233 
Rights  and  duties  of  neutral  powers  in 
war  on  land.     See  Geneva  con- 
vention ;    Neutral    territory,    in- 
ternment    of     belligerents     and 
care   of   wounded   in;    Neutrals, 
rights  and  duties  of. 
Roumania.     See   also  the  Index  of  Per- 
sons   under   Beldiman,    Coanda, 
Papiniu. 
delegates  to  the  conference    .       .         5, 231 
signatory  of  the  conventions  and  dec- 
larations     268 

amendment,    international   commissions 

of  inquiry        ....     116,669 
declarations: 
international   arbitration      .     122, 650, 651 
obligatory  arbitration   .        .        .     120, 652 
reservation   to   pacific   settlement   con- 
vention    .       .       ,    268,650,651,652 


GENERAL  INDEX 


879 


Russia.  See  also  the  Index  of  Persons 
under  Barantzew,  Easily,  Gilin- 
sky,  Martens,  Ovtchinnikow, 
Raffalovich,  Scheine,  Staal. 
delegates  to  the  conference  .  .  5,231 
signatory  of  the  conventions  and  dec- 
larations    268 

proposals  and  amendments: 

arbitral  code 180,801 

armistice 484 

bullets 337,338 

good  offices  and  mediation    166,  170,  691, 

797,  804 

guns   . 289, 337 

hospital  ships 451 

international  arbitration   167-9,  173,  178-9, 
700,  705,  714,  798;8{)0,  808,  815,  816,  837 
international  commissions  of  inquiry 

169,  800 
limitation    of    armaments    and    war 

budgets     .       .       .        89,90,305,306 
obligatory  arbitration  .       .    168,  173,  768, 

799,  808 
revision    of    Geneva    convention    of 

1864 385 


St.  Petersburg  declaration,  November  20, 
1868  (see  also  Conferences  and 
Congresses)  52,  58,  59,  79,  83,  170, 
209,  211,  262,  264,  266,  272,  273,  278, 
279,  286,  287,  324,  325,  332,  336,  338, 
344,  417,  491,  518,  804 
Sanitary  formations   and  establishments. 

See  Geneva  convention. 
Second    commission.      See    Commissions 
of   the   conference;    Committees, 
drafting;    Subcommissions. 
Secretariat  of  the  conference     .       .       .  8, 16 
Serbia.     See   also  the  Index  of  Persons 
under     Maschine,     Miyatovitch, 
Veljkovitch. 
delegates  to  the  conference    .       .        6, 232 
signatory  of  the  conventions  and  dec- 
larations     268 

declaration,    good    offices    and    media- 
tion      113,650 

reservation   to   pacific   settlement  con- 
vention       268,650 

Shipvrrecked.       See      under     Sick     and 

wounded. 
Siam.      See    also   the    Index   of   Persons 
under     Orelli,     Suriya     Nuvatr, 
Rolin,  Visuddha  Suriyasakdi. 
delegates  to  the  conference     .       .         6, 232 
signatory  of  the  conventions  and  dec- 
larations     268 

proposals   and   amendments: 

military   occupation      511,    515,    519,    520, 

522,  523,  524,  526 

permanent  court  of  arbitration     607,  777, 

786,  787 

prisoners  of  war 481 

sick,  wounded  and  shipwrecked         .     466 
declaration,   international   commissions 

of  inquiry        ....     115,638 


Sick    and    wounded.      See    also    Geneva 
convention;    Laws    and   customs 
of  war  on  land, 
in   land   warfare     58,  68,  69,  72,  78,  257. 
262,  423,  434,  438,  443,  474,  488,  489, 
495,  500-2,  509,  558,  559,  574 
in  naval   warfare     29-30,  39-42,  248,  249, 
389-92,   403-5,   444-6,   449,   452,   453, 
455-7,  463-70 
Sieges  and  bombardments.    See  also  Air- 
craft;   Bombardment    by    naval 
forces, 
discussion  in  the 

second  commission         ,       .       .       409-11 

second  subcommission       .       .         493-5 

report  of  the 

second  commission         ....       58 

second  subcommission       .       .       .     423 

draft  submitted  to  the 

conference 73 

second  commission         ....     438 
text  adopted  by  the 

conference 257 

second  subcommission,  first  reading  .     567 
Brussels  declaration,  text         .       .       .     567 
Signatures  to  the  Final  Act,  Conventions 

and  Declarations,  tables  of  220-1,268 
Spain.     See    also   the    Index   of   Persons 
under  Baguer,   Serallo,  Tetuan, 
Villa  Urrutia. 
delegates  to  the  conference     .       .         2,229 
signatory  of  the  conventions  and  dec- 
larations     268 

Special  mediation.    See  also  Good  offices 
and  mediation, 
proposal.  United  States  .       .    112,188,696, 

833,  836 

discussion  in  the 

third  commission    .       .       .         591-2, 650 

committee  of  examination  694,  696-9,774 

report  of  the 

third  commission    ....        112-13 

committee  of  examination        .  588 

text  adopted  by  the  conference       .       .     237 

Spies: 

proposal,   France 
discussion   in   the 
second  commission 
second  subcommission 
report  of  the 

second  commission 
second  subcommission 
draft  submitted  to  the 

conference 74 

second  commission         ....     439 
text  adopted  by  the 

conference 258 

second   subcommission,   first   reading    568 
Brussels  declaration,  text        .       .       .     568 
Subcommissions.      See    also    Committees 
of      examination;      Committees, 
drafting, 
first  commission 
first    subcommission — military    (Air- 
craft; Bullets;  Explosives;  Field 
cannon;   Guns;   Muskets;   Pow- 
ders) 


60, 425, 490 

.       .    409 
474,489-91,557 


59 
425 


880 


GENERAL  INDEX 


Subcoramissions: 
first  commission 
first  subcommission  (continued) : 

organization         ....     271, 275 

meetings 331-58 

report 284 

second  subcommission — naval  (Ar- 
mor plate;  Explosives;  Gases; 
Limitation  of  naval  armaments 
and  budgets;  Naval  cannon; 
Powders;  Submarines;  V^ar- 
ships  with  rams) 
organization         ....     271, 275 

meetings 359-80 

reports 291,320 

second  commission 

first  subcommission  (Maritime  war- 
fare and  the  Geneva  conven- 
tion) 

organization 383 

meetings 444-73 

report 395 

second  subcommission  (Laws  and 
customs  of  war  on  land;  Neu- 
trals, rights  and  duties) 

organization 383 

meetings 474-578 

report 415 

Submarine  cables.     See  Telegraphs   and 

telephones. 
Submarines    274,  275,  283,  284,  296,  299,  328, 

367,  368,  374 
Suez  canal,  Convention  of  1888' concern- 
ing the  free  use  of       .       .       .     726 
Sweden.    See  Sweden  and  Norway;  also 
the     Index     of     Persons     under 
Brandstrom,  Hjulhammar. 
Sweden  and  Norway.    See  also  Norway; 
Sweden;    the   Index   of   Persons 
under  Bildt. 
delegates  to  the  conference     .       .        6, 232 
signatory  of  the  conventions  and  dec- 
larations    268 

amendment,  arbitration  procedure    133-4,  611 

Switzerland.    See  also  the  Index  of  Per- 
sons under  Kiinzli,  Odier,  Roth, 
delegates  to  the  conference    .       .         6, 232 
signatory  of  the  conventions  and  dec- 
larations    268 

proposals   and   amendments: 

bullets 338 

international  commissions  of  in- 
quiry   118,793 

levee  en  masse  ....  540, 550 
military  occupation  515,  519,  529,  536,  537 
prisoners  of  war   ....  480-1 

restitution  of  railway  plant  .       67,  541,563 
declaration,   military  occupation    .        .     536 

System  of  arbitration.    See  also  Arbitra- 
tion,  international, 
proposals  and  amendments: 

Belgium 768 

Russia      .        167-9,173,768,798,808,837 
declaration,  Roumania     .       .     122,650,651 
discussion  in  the 
third  commission    .         584,  603-4, 650, 651 


committee   of  examination     688,  700-8, 
767-71,  774-5 
report  of  the 

third   commission 119 

committee  of  examination       .  595-7 

draft  submitted  to  the 

conference 159 

third  commission     ....     837,851 

committee  of  examination        .        .     837 

text  adopted  by  the  conference      .        .     238 

Taxes     (see    also    Military    occupation") 

63-4,  260,  503-5,  514-15,  522-24,  526-29, 
531,  535-7,  560,  561,  574 
Telegraphs  and  telephones  (see  also  Mili- 
tary occupation)      66,    100,    101,  261, 
540-2,  544,  545,  560,  562,  563 
Territorial   sea       .       66,494,541,542,544,562 
Theatre  of  war     .       61,259,369,476,484,499 
Third  commission.     See  Commissions  of 
the    conference;    Committees    of 
examination. 
Torpedo  boats,  diving.     See  Submarines. 
Treaties,    conventions    and    declarations 
containing    provisions   for    arbi- 
tration or  mediation, 
general  veeu  of  the  congress  of  Paris 

(1856)     109,  170,  171,  172,  191,  690, 

691,  805,  806,  818 

treaty  of  Paris,  March  30,  1856     109,   170, 

171,  192,  805,  819 

postal  convention  of  Berne,  October  9, 

1874   .       .       .     124,171,177,806,811 
general  act  of  the  conference  of  Berlin, 

February  26,  1885     109,  171,  172,  192, 
193,  691,  805,  806,  819,  820 
general  act  of  the  conference  of  Brus- 
sels, July  2,  1890      117,  193,  725,  820 
convention  of  Berne,  October  14,  1890, 
international    union    for    trans- 
portation    of     merchandise     by 
railroad    ....     194,712,821 

Pan  American  conference  draft  (1889- 

90)      ......       .     122 

universal    postal    union,   July  4,    1891 

121,  139,  193-4,  597,  820,  821 
Argentine    Republic  —  Italy,    July    23, 

1898    121,  141,  150,  200,  596,  619,  622, 
721,735,749,753,827 
Austria-Hungary  —  Siam,      May      17, 

1869 194,821 

Belgium  — Denmark,  June  18,  1895  .  196 
Belgium  —  Ecuador,  March  5,  1887  195,  822 
Belgium  —  Greece,  May  25,  1895  .  196,  823 
Belgium— Hawaii,  October  4,  1862  195,822 
Belgium  —  Italy,  December  1 1,  1882  195,  822 
Belgium  — Norway,  June  11,  1895  196,823 
Belgium —  Orange  Free  State,  Decem- 
ber 27,  1894  ....  195,822 
Belgium— Siam,  August  29,  1868  195,822 
Belgium  —  South      African     Republic, 

February  3,  1876  .  .  .  195, 822 
Belgium  — Sweden,  June  11,  1895  196,823 
Belgium  —  Venezuela,   March   1,    1884 

195,822 
Chile  —  Sweden  and  Norway,  July  6, 

1895 203,205 


GENERAL  INDEX 


881 


Treaties,  etc.  (continued) : 

Colombia  —  Italy,  October  27,  1892  200,  827 
Colombia  — Spain,  April  28,  1894  197,824 
Denmark  — Belgium,  June  18,  1895  .  196 
Denmark  —  Venezuela,    December    19, 

1862 196,823 

Dominican    Republic  —  Italy,    October 

18,   1886 200,826 

Ecuador  —  Belgium,  March  5,  1887  195,  822 
Ecuador  — Spain,  May  26,  1888  .  197,823 
Ecuador  —  Switzerland,  June  22,  1888 

206  832 
France  — Korea,  June  4,  1886  .  198*,  825 
France  —  Netherlands,    November    29, 

1888 739 

Germany  —  Great     Britain,     July      1, 

1890 194,821 

Great     Britain  —  Germany,     July     1, 

1890 194,821 

Great  Britain  —  Greece,  November  10, 

1886 198,825 

Great  Britain  —  Italy,   June    15,    1883 

198, 825 
Great  Britain  —  Mexico,  November  27, 

1888 198,825 

Great     Britain  —  Portugal,     May     31, 

1893 198,204 

Great    Britain  —  Uruguay,    November 

13,  1885 198, 825 

Great   Britain  —  United    States,    April 

11,  1897  (draft)     .       .       .     122,124 
Great   Britain  —  Venezuela,    February 

2,   1897 183 

Greece  —  Belgium,  May  25,  1895  198,825 
Greece  —  Great  Britain,  November  10, 

1886 198,825 

Greece  —  Italy,     November    27,     1880 

198,  825 
Greece  — Italy,  April  1,  1889  .  200,826 
Hawaii— Belgium,  October  4,  1862  195,822 
Hawaii  —  Switzerland,   July   20,    1864 

205,  832 
Honduras  —  Spain,  November  17,  1894 

197,  824 
Italy  —  Argentine    Republic,    July    23, 

1898     121,    141,    150,   200,    596,   619 

622,  721,  735,  749,  753,  827 

Italy  —  Belgium,  December  11,  1882    199,  826 

Italy  —  Colombia,  October  27,  1892    200,  827 

Italy  —  Dominican    Republic,    October 

18,  1886 200,826 

Italy  —  Great   Britain,   June   15,    1883 

199,  826 
Italy  —  Greece,  November  27,  1880  199,  826 
Italy— Greece,  April  1,  1889  .  200,826 
Italy  — Korea,  June  26,  1884  .  199,826 
Italy  —  Mexico,  April    16,   1890    .     200,827 

Italy  —  Montenegro,    March    28,    1883 

199,  826 

Italy  —  Montenegro,  October  29,   1892 

200,827 

Italy  —  Netherlands,   January  9,    1884 

199,  826 

Italy  —  Orange  Free  State,  January  9, 

1890 200,827 

Italy  — Paraguay,  August  22,  1893    200,827 


Italy  —  Roumania,  August  17,  1880    199,  826 
Italy  —  Siam,  October  3,  1868       .     205, 831 
Italy  —  South    African    Republic,    Oc- 
tober 6,  1886  ....     200,826 
Italy  — Switzerland,    April     19,     1892 

200, 827 
Italy  — Uruguay,  April  14,  1879  .  198,825 
Italy  —  Uruguay,    September    19,    1885 

199,  826 
Japan  ^  Siam,  February  25,  1898  202,829 
Kongo  —  Switzerland,     November     16, 

1889 206,832 

Korea  — France,  June  4,  1886  .  198,825 
Korea  —  Italy,  June  26,  1884  .  .  199,  826 
Mexico — ^  Great  Britain,  November  27, 

1888 202,829 

Mexico  —  Italy,  April  16,  1890  .  202,  829 
Mexico — Sweden    and    Norway,    July 

29,   1885    ....     202,205,829 
Montenegro  —  Italy,    March    28,    1883 

202,  829 
Montenegro  —  Italy,   October  29,   1892 

200,  827 
Netherlands  —  France,    November    29, 

1888 739 

Netherlands  —  Italy,   January   9,    1884 

204,  830 
Netherlands  —  Portugal,  June  10,  1893 

204,  830 
Netherlands  —  Portugal,   July   5,    1894 

121,  204,  596,  831 
Netherlands  —  Roumania,    March    15, 

1899 204 

Netherlands  — Spain,  June  8,  1887  .  824 
Norway  — Belgium,  June  11,  1895  203,830 
Norway  —  Portugal,  December  31,  1895 

203  830 
Norway— Siam,  May  18,  1868  .  .  '  830 
Norway  — Spain,  June  23,  1887  .  .  830 
Norway  —  Spain,    January    27,    1892; 

August  9,  1893       .       .       .       .203 

Norway  —  Switzerland,       March      22, 

1894   .  ....    203, 830 

Orange  Free  State  —  Belgium,  Decem- 
ber 27,  1894    ....     195, 822 

Orange  Free  State  —  Italy,  January  9, 

1890 200,827 

Paraguay  — Italy,  August  22,  1893    200,827 

Portugal  —  Great     Britain,     May     31, 

1893 198,204 

Portugal  —  Netherlands,  June  10,  1893 

204,  831 

Portugal  —  Netherlands,   July  5,    1894 

121,204,  596,  831 

Portugal  —  Norway,  December  31,  1895 

204  831 
Roumania  —  Italy,  August  17,  1880  204*,  831 
Roumania  —  Netherlands,     March     15, 

1899 205 

Roumania  —  Switzerland,  February  19- 

March  3,  1893        .       .       .    205, 831 
Salvador  —  Switzerland,     October    30, 

1883 206,832 

Siam  —  Austria-Hungary,      May      17, 

1869 205,831 

Siam  — Belgium,  August  29,  1868  205,831 
Siam  — Italy,  October  3,  1868       .     205,831 


882 


GENERAL  INDEX 


Treaties,  etc.    (continued) : 

Siam  — Japan,  February  25,  1898  205,831 
Siam  —  Sweden  and  Norway,  May  18, 

1868   .       .       .       .       .       ._  205,831 

South      African      Republic  —  Belgium, 

February  3,  1876   .        .        .     195,822 
South    African    Republic  —  Italy,    Oc- 
tober 6,  1886  .       .       .^       .     200, 826 
South  African  Republic  —  Switzerland, 

November  6,  1885  .  .  .  206,  832 
Spain  —  Colombia,  April  28,  1894  197,824 
Spain  —  Ecuador,  May  26,  1888  .  197, 823 
Spain  —  Honduras,  November  17,  1894 

197, 824 
Spain  — Netherlands,  June  8,  1887  .  824 
Spain  —  Norway,    January    27,    1892; 

August  9,  1893  .  .  .  .203 
Spain  —  Sweden,    January    27,     1892; 

August  9,  1893  .  .  .  .205 
Spain  — ■  Sweden  and  Norway,  June  23, 

1887 197,824 

Spain  — Venezuela,  May  20,  1882  196,823 
Sweden  — Belgium,  June  11,  1895  205,832 
Sweden  — Siam,  May  18,  1868  .  .  832 
Sweden  — Spain,  June  23,  1887  .  .  832 
Sweden — 'Spain,    January    27,     1892; 

August  9,  1893  .  .  .  .205 
Sweden   and   Norway  —  Chile,  July  6, 

1895 203,205 

Sweden    and    Norway  —  Mexico,    July 

29,  1885  ....  202,205,829 
Sweden  and  Norway  —  Siam,  May  18, 

1868 202 

Sweden  and  Norway  —  Spain,  June  23, 

1887 197,824 

Switzerland  —  Ecuador,  June  22,  1888 

206,  832 
Switzerland  —  Hawaii,    July   20,    1864 

205  832 
Switzerland  — Italy,     April     19,     1892* 

206,  832 
Switzerland  —  Kongo,     November     16, 

1889 206,832 

Switzerland  —  Norway,      March      22, 

1894   .       .       .       .       .       .     206,832 

Switzerland  —  Roumania,  February  19- 

March  3,  1893  .  .  .206, 832 
Switzerland  —  Salvador,     October     30, 

1883    ......     206,832 

Switzerland  —  South  African  Republic, 

November  6.  1885  .  .  206, 832 
Switzerland  —  United  States,  July  24, 

1883  (draft)  .  .  _  .  .  .121 
United    States  —  Great   Britain,    April 

11,  1897  (draft)  .  .  .  122,124 
United    States  —  Switzerland,   July  24, 

1883  (draft)  .  .  .  .  .121 
Uruguay  —  Great    Britain,    November 

13,   1885 198,825 

Uruguay  — Italy,  April  14,  1879  .  198,825 
Uruguay — Italy,    September    19,    1885 

199,  826 
Venezuela  —  Belgium,   March   1,    1884 

195, 822 
Venezuela  —  Denmark,    December    19, 

1862 196,823 


Venezuela  —  Great   Britain,    February 

2,  1897 183 

Venezuela  — Spain,  May  20,  1882     196,823 
Tribunal,    arbitral.      See    under    Perma- 
nent court  of  arbitration. 
Tribunal,   international.     See  Permanent 

court  of   arbitration. 
Truce,  flag  of  (see  also  Parlementaires) 

60,  61,   74,  257,  258,  424,  425,  426, 
485,  491,  575 
Turkey.     See  also  the  Index  of  Persons 
under     Abdullah     Pasha,     Me- 
hemed       Pasha,       Noury      Bey, 
Turkhan    Pasha, 
delegates  to  the  conference   .       .         7, 232 
signatory  of  the  conventions  and  dec- 
laration      268 

declaration,   pacific  settlement    100, 155, 683 
reservations: 
maritime   warfare   and   the   Geneva 

convention        ....     249, 268 
pacific  settlement  convention       .     100,268 

United    States.      See    also    the    Index   of 
Persons    under    Crozier,    Holls, 
Low,  Mahan,   Newell,  White, 
delegates  to  the  conference    .        .         2,  229 
signatory  of  the  conventions  and  dec- 
larations     268 

proposals   and   amendments: 

aircraft 354 

bullets 80,279 

inviolability  of  enemy  private  prop- 
erty at  sea       .       .       50,411,491,629 
maritime   warfare   and   the   Geneva 

convention 392 

permanent  court  of  arbitration     127,  150, 

188,  718,  724,  795,  833 

special  mediation     112,  188,  696,  833,  836 

declaration  as  to  its  foreign  policy      99,  155 

reservations: 

maritime   warfare    and   the   Geneva 

convention        ....     249, 268 

pacific  settlement  convention      .       99, 268 

Universal  postal  union    121,  124,  139,  171,  177, 

193-4,  241,  597,  806,  811,  820,  821 

Vessels.     See  Geneva  convention;  War- 
ships. 
Vienna,  Congress  of  (1816)       .       .       .     272 
Fceux: 

immunity  of   private   property   at   sea 

46,  104,  233-4 
limitation    of    armed    forces    and    war 

budgets 104,233 

naval  bombardment  .       .         46,49,104,234 
revision    of    the    Geneva    convention 

46,  104,  233,  393,  408,  472,  473 
rights  and  duties  of  neutrals  45, 104,  233,  499 
types  and  calibres  of  guns     .        .     104, 233 

War  on  land.  See  Armistices;  Belliger- 
ents in  land  warfare;  Belliger- 
ents in  neutral  territory;  Brus- 
sels declaration;  Capitulations; 
Internment;    Laws   and   customs 


GENERAL  INDEX 


883 


i 


War  on  land  (continued)  : 

of  war  on  land;  Means  of  in- 
juring the  enemy;  Military  occu- 
pation; Parlementaires;  Pris- 
oners of  war;  Sieges  and  bom- 
bardments; Spies. 

War-ships  with  rams: 


discussion  in  the 
first  commission     .       .         274, 275, 298-9 
second    subcommission      .      368-370, 374 
report  of  second  subcommission    .        .     296 
Washington,     treaty     of     (February     2, 

1897) 183-6 

Wounded.     See  Sick  and  Wounded. 


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